Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement and the Guaranty; (ii) Notes executed by the Borrowers in favor of each Lender requesting a Note; (iii) [Reserved.] (iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement; (v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent; (vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with: (A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank, (B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements, (C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date, (D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and (E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements); (vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party; (viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party; (ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; (x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect; (xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; (xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required; (xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date; (xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements; (xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and (xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; (xxiv) [Reserved]; (xxv) evidence that the Canadian Borrower has complied with Section 11.15(d); (xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent; (xxvii) a Loan Notice for a Borrowing; and (xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require. (b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower; (i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid; (d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent); (e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date; (f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 4 contracts
Sources: Amendment No. 5 to Amended and Restated Credit Agreement (USD Partners LP), Credit Agreement (USD Partners LP), Master Assignment, Assignment of Liens, and Amendment No. 1 to Amended and Restated Credit Agreement (USD Partners LP)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and Agreement, in the Guarantynumber requested by the Administrative Agent;
(ii) Notes a Note executed by the Borrowers Company in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Stock referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, instruments evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement debt instruments indorsed in blank,
(B) proper financing statements, Personal Property Security Act authorization by the Loan Parties to file financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casea completed “perfection certificate” or other requests for information, dated as of a recent on or before the date with respect to the Borrower and each other Loan Party as of the Closing Dateinitial Credit Extension, describing the assets of the Loan Parties and any existing Liens,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) the Deposit Account Control Agreements and the Securities Account Control Agreement, in each case as referred to in the Security Agreement and duly executed by the appropriate parties,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowerslandlords’ and their Subsidiariesbailees’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained waiver and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(dconsent agreements);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 4 contracts
Sources: Credit Agreement (Buckeye Technologies Inc), Credit Agreement (Buckeye Technologies Inc), Credit Agreement (Buckeye Technologies Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party or the General Partner acting on behalf of such Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a pledge and security agreement (iv) amendments together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, in each case as amended, the “Security Agreement”), duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Subsidiary Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name the Borrower or any Subsidiary as debtor, together with copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each such other Loan Party as of the Closing Datefinancing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(E) the account control agreements referred to in the Security Agreement and duly executed by the appropriate parties,
(F) the Tesoro Consent, duly executed by each party thereto, and
(EG) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) subject to the provisions of the Post Closing Agreement, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, covering the fee and recorded leasehold estates and recorded easement interests owned by the Borrower or any of its Subsidiaries in the land on which the Initial Terminals, the High Plains Trunkline, and the Utah Pipelines are located, (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or reasonably desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or arrangements therefor satisfactory to the Administrative Agent have been made),
(B) with respect to the Initial Terminals, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property to the extent available in the jurisdiction in which such property is located) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) estoppel and consent agreements executed by each of the lessors of the leased real properties listed on Schedule 4.01(a)(iv), and, if applicable, any such lessor’s mortgagee, along with (1) a Canadian Security Confirmation memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Mortgages, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(v) the Post Closing Agreement duly executed by each Canadian Loan Partyof the parties thereto;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party or the General Partner acting on behalf of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each the Borrower and each Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, McGuireWoods LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvix) a favorable opinion of local counsel to the Loan Parties in Luxembourg each of Alaska, California, Idaho, Montana, North Dakota, Utah and Washington addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiix) a certificate of a Responsible Officer of each the General Partner on behalf of all Loan Party Parties either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party or Loan Parties of the Transaction and the execution, delivery and performance by such Loan Party or Loan Parties and the validity against such Loan Party or Loan Parties of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxi) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxii) a business plan and budget of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a monthly basis for the first year following the Closing Date;
(xiii) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, Loan Parties on a consolidated basis, basis before and after giving effect to the execution and delivery of the Loan Documents and all Documents, any Credit Extensions Extension to be made on the Closing DateDate and the consummation of the Transaction, from the chief financial officer of the Borrower;
(xxixiv) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the BorrowersBorrower or to the extent existing and otherwise obtainable by the Borrower, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers Borrower and their its Subsidiaries with respect to the Borrowers’ Borrower’s and their its Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The Loan Parties shall have provided true, correct, and complete copies of all Material Contracts to the Administrative Agent and the Lenders to the extent not previously provided (and the Administrative Agent and the Lenders agree that any Material Contracts filed with the SEC in connection with the Transaction shall be deemed delivered), and the Administrative Agent and the Lenders shall be satisfied in their reasonable discretion with their review thereof. None of the material terms or conditions to closing of any party set forth in the Material Contracts shall have been amended, modified or supplemented without the prior written consent of the Administrative Agent, and all conditions stated therein shall have been satisfied or, with the prior written consent of the Administrative Agent, waived.
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Transaction shall have been paid completed in full (or will be paid in full substantially concurrently accordance with the closing terms of the Transfer Documents and applicable Law. Without limiting the generality of the provisions of Section 9.03(e), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 4 contracts
Sources: Credit Agreement (Tesoro Corp /New/), Credit Agreement (Tesoro Logistics Lp), Credit Agreement (Tesoro Logistics Lp)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender and Swing Line Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s (or Collateral Agent’s, as appropriate) receipt of the following, each of which shall be originals originals, telecopier or telecopies electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyGuaranty and Collateral Agreement, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, each Lender and the Borrowers;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agentextent not identified as a post-closing obligation on Schedule 6.17, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise each Security Document listed in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorSchedule, together with, if applicable:
(A) to the extent required thereby and not previously delivered to the Administrative Agentcertificates representing any certificated equity interests pledged therein, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in or, if applicable, other appropriate instruments of transfer and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instrumentsdebt pledged therein, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,;
(B) copies of all Uniform Commercial Code, judgment and tax lien searches with respect to personal property Collateral, together with copies of the financing statements (or similar documents) disclosed by such searches, and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.01 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent), and all proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementDocuments (in the circumstances and to the extent required under such Security Document), the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral of the Loan Parties described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,Documents;
(C) copies if required, with respect to any real property Collateral located in a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency on which such Building or Manufactured Mobile Home are located in a “flood hazard area” and where such Building or Manufactured Mobile Home constitute Collateral, each of each Luxembourg Loan Party’s shareholder register the following: (x) standard flood hazard determination forms if any property is located in a special flood hazard area, (y) notices to (and UCCconfirmations of receipt by) the Parent Borrower as to the existence of a special flood hazard and, Personal Property Security Actif applicable, federal the unavailability of flood hazard insurance under the National Flood Insurance Program and state tax and bankruptcy lien searches(z) evidence of applicable flood insurance, if available, in each casecase in such form, dated on such terms and in such amounts as required by The National Flood Insurance Reform Act of a recent date with respect to 1994 or as otherwise required by Flood Insurance Regulations or reasonably requested by the Borrower and each other Loan Party as of the Closing Date,Administrative Agent.
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents documents, agreements and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized organized, formed or formedincorporated, and that each Borrower of the Borrowers and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownershiporganization, lease formation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectincorporation;
(xivi) with respect to any Luxembourg such certificates signed by a Responsible Officer of each Loan Party, a certificate of an authorized signatory Party attaching true and complete copies of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Loan Party’s Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xiivii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, as to customary such matters concerning the Loan Parties, the Loan Documents and the transactions contemplated hereby as the Administrative Agent may request, addressed to the Administrative Agent, the Collateral Agent and each Lender;
(viii) at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Loan Parties and the Loan Documents as Target (and its Affiliates), that has been reasonably requested in writing by the Required Lenders may Administrative Agent at least ten (10) days prior to the Closing Date that it reasonably requestdetermines is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party the Parent Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such any Loan Party and the validity against any such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxix) the Audited Financial Statements and the Unaudited Quarterly Initial Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the including certificates of insurance, naming the Administrative Collateral Agent, on behalf of the Secured PartiesLenders, as loss payee and as an additional insured or lender loss payeeinsured, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxii) [Reserved]evidence that (A) the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released and (B) any Liens relating to the Target and any prior indebtedness of such Target immediately prior to the Acquisition have been terminated and released concurrently with the Closing Date;
(xxvxiii) evidence that a certificate from the Canadian Borrower has complied with Section 11.15(d)chief financial officer of each Loan Party, in substantially the form of Exhibit G hereto, attesting to the Solvency of each Loan Party before and after giving effect to the Transactions and the incurrence of the Indebtedness related thereto;
(xxvixiv) endorsements to existing title insurance policies with respect to a certificate from a Responsible Officer of the Mortgages Parent Borrower (A) attaching forecasts, in form and substance reasonably satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before Lenders, of balance sheets, income statements and cash flow statements for (x) each quarter for the first twelve months following the Closing Date and (y) each year commencing with the first fiscal year following the Closing Date for the term of this Agreement and (B) certifying that such forecasts were prepared in good faith on the basis of assumptions believed to be reasonable when made; and
(xv) evidence that (i) all of the general partnership interests in the Parent Borrower shall have been paid, be owned by the General Partner and (ii) all ownership interests of the Parent Borrower’s Subsidiaries shall be owned by the Parent Borrower or one or more of the Parent Borrower’s Subsidiaries, in each case of clauses (i) and (ii), free and clear of any Lien not permitted under this Agreement or the other Loan Documents.
(b) Other than as set forth on Schedule 4.01, after giving effect to the transactions contemplated hereby, no third-party indebtedness for borrowed money of the Parent Borrower or any of its Subsidiaries shall remain outstanding as of the Closing Date other than Indebtedness incurred or permitted pursuant to this Agreement.
(c) Since December 31, 2013 there shall not have occurred any change, occurrence or development that has had or could be reasonably expected, either individually or in the aggregate, to have an Acquisition Material Adverse Effect.
(d) (i) The Transactions shall have been consummated in accordance with the Acquisition Agreement, the other Acquisition Documents and other Transaction Documents, and such Acquisition Agreement, the other Acquisition Documents and other Transaction Documents shall not have been altered, amended or otherwise changed or supplemented or any condition therein waived, in each case, in a manner that is materially adverse to the Lenders without the prior written consent of the Lenders and (ii) the Parent Borrower shall have received additional proceeds to include at least $700,000,000 in cash proceeds from a combination of the Public Equity Offering, the LP Bridge Loans, the Senior Notes and the Parent Equity Investment, as each is applicable.
(e) The (x) Specified Representations and (y) Specified Acquisition Agreement Representations shall be true and correct on and as of the Closing Date.
(f) The Administrative Agent shall have received a certificate signed by a Responsible Offer of the Parent Borrower on behalf of itself and the other Loan Parties as to the matters set forth in clauses (c), (d) and (e).
(g) Total Outstandings shall be no greater than $250,000,000 as of the Closing Date, after giving effect to the Transactions and all Credit Extensions under this Agreement on such date.
(h) Any fees required to be paid by the Borrowers to the Administrative Agent and the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid in accordance with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V Fee Letter or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently including reasonable legal fees). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the closing of conditions specified in this Section 4.01, each Lender that has signed this Agreement on shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) all accrued interest, accrued fees, and other amounts payable (other than Administrative Agent shall have received notice from such Lender prior to the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 3 contracts
Sources: Credit Agreement (CSI Compressco LP), Credit Agreement (Tetra Technologies Inc), Credit Agreement (Compressco Partners, L.P.)
Conditions of Initial Credit Extension. The effectiveness of this Agreement, and the obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is hereunder, are each subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments executed counterparts of each Security Instrument to and reaffirmations of Mortgages, duly executed be entered into by the applicable any Loan Party and (other than the Administrative Agent and otherwise in form and substance reasonably satisfactory to BWXT Entities) on the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security AgreementClosing Date, duly executed by each Borrower and each GuarantorLoan Party party thereto, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the certificated Pledged Equity referred to therein Interests pledged under the Collateral Agreement, and accompanied by undated stock or other transfer powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Collateral Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreementstherein,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as of a recent date with respect on or before the Closing Date, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Date,such other financing statements, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Instruments to be entered into on the Closing Date that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebythereby (including receipt of duly executed payoff letters and UCC-3 termination statements), and
(E) evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the IP Security Agreement has been taken or will be taken on or after the Closing Date;
(iv) with respect to each of the Mortgaged Properties listed on Schedule 4.01(a)(iv), except to the extent waived by the Administrative Agent (in which case Section 6.29 shall apply to any matters set forth below that are so waived), each of the following:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties, excepting only Liens permitted under the Loan Documents, and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or the Borrower has made arrangements satisfactory to the Administrative Agent for payment thereof),
(B) a mortgagee’s title insurance policy (or policies) (the “Mortgagee Policies”) or marked up unconditional binder for such insurance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Liens permitted under the Loan Documents,
(C) evidence that all premiums in respect of the Mortgagee Policies have been paid (or the Borrower has made arrangements satisfactory to the Administrative Agent for payment thereof),
(D) evidence that no such Mortgaged Property is located in a special flood hazard area as designated by any federal Governmental Authority other than those for which flood insurance has been provided, and evidence of any such flood insurance, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the create valid first and subsisting Liens created (excepting only Liens permitted under the Security Agreement Loan Documents) on the property described in the Mortgages has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, existing and in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇(A) ▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel to the Loan Parties, (B) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of the Borrower, or ▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant General Counsel of the Borrower, (C) Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, local Ohio counsel to certain of the Loan PartiesParties (except to the extent any such opinion relates to matters required by Section 4.01(a)(iv) which are waived to a post-closing date and covered by Section 6.29), and (D) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Winter & Stennis, P.A., local Mississippi counsel to certain of the Loan Parties (except to the extent any such opinion relates to matters required by Section 4.01(a)(iv) which are waived to a post-closing date and covered by Section 6.29), in each case addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders and addressing such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiviii) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2008 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) to (and providing such backup evidence as may reasonably be requested) the current Debt Ratings and the current corporate family and corporate ratings of the Borrower and its Subsidiaries from each of ▇▇▇▇▇’▇ and S&P;
(xxx) a certificate of a duly completed Compliance Certificate signed by the Chief Financial Officer or the Treasurer of the US Borrower attesting Borrower, demonstrating compliance as of the last day of the Fiscal Year ended on December 31, 2009 with the financial covenants in Section 7.18 after giving pro forma to the Solvency incurrence and repayment of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made Indebtedness on the Closing DateDate (and providing such backup evidence as may reasonably be requested);
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insuranceinsurance or other appropriate documentation, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvxii) evidence that each of the Canadian Borrower Existing Credit Agreements has complied been or concurrently with Section 11.15(dthe Closing Date is being paid in full and terminated and all Liens securing obligations under each of the Existing Credit Agreements have been or concurrently with the Closing Date are being released (including receipt of duly executed payoff letters and UCC-3 termination statements);
(xxvixiii) endorsements such documentation and other information as has been reasonably requested by the Administrative Agent or any Lender prior to existing title insurance policies the Closing Date in connection with the provisions of Section 6.10 hereof;
(xiv) copies of the Historical Financial Statements and the audited consolidated financial statements of the Borrower and its Subsidiaries for Fiscal Years 2007 and 2008, and (if applicable) any interim unaudited financial statements for each quarterly period ended since December 31, 2009;
(xv) a copy of the Form 10, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, with respect to the Mortgages in form and substance satisfactory to Spinoff (including the Administrative Agent;
(xxvii) a Loan Notice for a Borrowingpro forma consolidated financial statements of the New Borrower required by such Form 10); and
(xxviiixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect in each case pursuant to the Mortgages (or any amendments or supplements thereto) shall have been paid;Fee Letters.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 3 contracts
Sources: Credit Agreement (Babcock & Wilcox Co), Credit Agreement (Babcock & Wilcox Co), Credit Agreement (McDermott International Inc)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and Agreement, in the Guarantynumber requested by the Administrative Agent;
(ii) Notes a Note executed by the Borrowers Company in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Subsidiary Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, instruments evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement debt instruments indorsed in blank,
(B) proper financing statements, Personal Property Security Act authorization by the Loan Parties to file financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casea completed “perfection certificate” or other requests for information, dated as of a recent on or before the date with respect to the Borrower and each other Loan Party as of the Closing Dateinitial Credit Extension, describing the assets of the Loan Parties and any existing Liens,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) the Deposit Account Control Agreements and the Securities Account Control Agreement, in each case as referred to in the Security Agreement and duly executed by the appropriate parties,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowerslandlords’ and their Subsidiariesbailees’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained waiver and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(dconsent agreements);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 3 contracts
Sources: Credit Agreement (Buckeye Technologies Inc), Credit Agreement (Buckeye Technologies Inc), Credit Agreement (Buckeye Technologies Inc)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent on the date of the initial Credit Extensions under this Agreement:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and Agreement, in the Guarantynumber requested by the Administrative Agent;
(ii) Notes a Note executed by the Borrowers applicable Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to a guarantee, pledge and reaffirmations of Mortgagessecurity agreement, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative AgentAgent (as it may be amended, amending such terms the “Guarantee and provisions of the Mortgages to reflect the effectiveness of this Collateral Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement”), duly executed by each Borrower and each GuarantorU.S. Loan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Stock referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, instruments evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement debt instruments indorsed in blank,
(B) proper financing statementsa completed “perfection certificate”, Personal Property Security Act financing statements dated on or before the date of the initial Credit Extension, describing the assets of the Loan Parties substantially in the form furnished by or on behalf of the Administrative Agent prior to such date;
(C) evidence reasonably satisfactory to the Administrative Agent that all other actions, recordings and filings in form appropriate for filing under of or with respect to the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions Guarantee and Collateral Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under thereby are capable of being completed promptly following the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Dateinitial Credit Extensions hereunder,
(D) evidence of the completion of all other actions, recordings and filings of or control agreements with respect to Deposit Accounts and Securities Accounts, in each case as referred to in the Security Guarantee and Collateral Agreement (to the extent required by the Administrative Agent), duly executed by the appropriate parties; provided that such agreements may be delivered on a post-closing basis, but in no case later than 60 days after the Closing Date unless the Administrative Agent may deem reasonably necessary or reasonably desirable has otherwise agreed in order to perfect the Liens created thereby, andwriting,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Guarantee and Collateral Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed any landlords’ and bailees’ waiver and consent agreements reasonably requested by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably same are obtainable using commercially reasonable efforts); provided that any required (after taking into account the foregoing standard) landlords’ and bailee waivers and consent agreements may be expected to have delivered on a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇post-closing basis, LLP, counsel to but in no case later than 60 days after the Loan Parties, addressed to Closing Date unless the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties has otherwise agreed in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreementwriting), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 2 contracts
Sources: Credit Agreement (Appleton Papers Inc/Wi), Credit Agreement (Paperweight Development Corp)
Conditions of Initial Credit Extension. The obligation effectiveness of each L/C Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedentprecedent on or prior to the Restatement Effective Date, unless waived by the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, facsimiles or telecopies electronic copies (followed promptly by originals) unless otherwise specified, each each, to the extent signed by a Loan Party, properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) duly executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]duly executed counterparts of each other Loan Document sufficient in number for distribution to the Administrative Agent and the Borrower, together with results of searches (including, without limitation, intellectual property and lien searches), dated on or before the Restatement Effective Date, together with copies of such other supporting documentation as may be necessary or desirable showing that the Liens created by the Collateral Documents are the only Liens upon the Collateral, except Liens permitted pursuant to Section 7.01;
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement[intentionally omitted];
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly certificates executed by the applicable a Responsible Officer of each Loan Party attaching (w) resolutions or other action authorizing the actions under the Loan Documents, (x) incumbency certificates, (y) copies of the Organization Documents of such Loan Party, certified to be true, accurate and otherwise complete and in form and substance reasonably satisfactory to effect on the Administrative Agent;
(vi) Restatement Effective Date, or certifying that the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously Organization Documents of such Loan Party delivered to the Administrative AgentAgent on the Original Closing Date were true, certificatesaccurate and complete on the Original Closing Date and remain in effect on the Restatement Effective Date without amendment, if anyrestatement, representing supplement or other modification from the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name copies of such nominee or nominees as documents delivered on the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Original Closing Date,
, and (D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixz) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could so, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lenderthe other Secured Parties, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request, in form, scope and substance reasonably satisfactory to the Administrative Agent;
(xvvii) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ L.L.C., local New Jersey counsel to the Loan Parties in Luxembourg Parties, addressed to the Administrative Agent and each Lenderthe other Secured Parties, as to customary the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request, in form, scope and substance reasonably satisfactory to the Administrative Agent;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required required, as of the date hereof, in connection with the consummation by such Loan Party of the Transaction (other than those delivered pursuant to clause (v) above), and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements January 3, 2012 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) as to calculations demonstrating that, on a Pro Forma Basis, the Consolidated Leverage Ratio for the Measurement Period most recently ended, after giving effect to the Borrowings to occur on the Restatement Effective Date and after giving pro forma effect to the dividend to be made in accordance with Section 7.06(g), is not greater than 3.00:1.00;
(xxx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, Loan Parties on a consolidated basis, basis before and after giving effect to the execution Borrowings to occur on the Restatement Effective Date and delivery of the Loan Documents and all Credit Extensions dividend to be made on in accordance with Section 7.06(g), from the Closing DateBorrower’s chief financial officer;
(xxixi) the Audited Financial Statements certificates of insurance and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available endorsements demonstrating coverage reasonably satisfactory to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvxii) evidence that the Canadian Borrower has complied with Collateral Documents shall be effective to maintain in favor of the Administrative Agent a legal, valid and enforceable first priority (subject to Liens permitted under Section 11.15(d)7.01 and entitled to priority pursuant to applicable Law) security interest in and Lien upon the Collateral, and evidence that all filings, recordings, deliveries of instruments and other actions necessary in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(xxvixiii) endorsements to existing title insurance policies with respect to forecasts prepared by management of the Mortgages Borrower of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Domestic Subsidiaries on an annual basis for the five Fiscal Years of the Borrower following the Restatement Effective Date, each in form and substance reasonably satisfactory to the Administrative Agent;
(xxviixiv) a executed copies of any relevant Committed Loan Notice for a BorrowingNotices and Letter of Credit Applications; and
(xxviiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender Issuer or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid and expenses then due and owing to the Administrative Agent and the Joint Lead Arrangers and required to be paid on or before the Closing Restatement Effective Date shall have been paid and (ii) all fees and expenses then due and owing to the Lenders and required to be paid on or before the Restatement Effective Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent and counsel to the Administrative Agent);.
(d) The Administrative Agent shall have received an executed funds flow statement in form and substance acceptable to the Administrative Agent.
(e) The representations and warranties of the Borrowers and each other Loan Party contained There shall not exist any action, suit, investigation, litigation or proceeding pending or threatened in Article V any court or before any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality arbitrator or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to havegovernmental authority that, either individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect;Effect on the Borrower or its Subsidiaries, the Transaction, the Term Facility, the Revolving Credit Facility or any of the other transactions contemplated hereby.
(if) The Existing Loans and Existing L/C Advances (if any) Administrative Agent shall have been paid received all information about the Loan Parties required by the Act, including the identity of such Loan Party, the name and address of such Loan Party and other information that will allow the Administrative Agent or any Lender, as applicable, to identify such Loan Party in full (or will be paid in full substantially concurrently accordance with the closing Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Restatement Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Amendment No. 2 and Reaffirmation of Collateral Documents (Einstein Noah Restaurant Group Inc), Credit Agreement (Einstein Noah Restaurant Group Inc)
Conditions of Initial Credit Extension. The obligation obligations of each the L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder is are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes;
(iii) [Reserved.]
(iv) amendments to the Pledge and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantorthe Loan Parties, together with:
(A) certificates representing the Equity Interests of any Domestic Subsidiary pledged pursuant to the Pledge and Security Agreement (to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged such Equity referred to therein Interests are certificated) accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casesearch results, dated as of a recent date with respect prior to the Borrower and each other initial Credit Extensions, together with copies of all effective Uniform Commercial Code financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as of the Closing Date,debtor, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)thereby;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as Lender and in form and substance satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) financial projections and forecasts prepared by management of the Borrower and reasonably satisfactory to the Administrative Agent, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for the five year term of the Facilities;
(ix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, ; and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxx) a certificate of a Financial Officer duly completed Compliance Certificate as of the US Borrower attesting to the Solvency last day of the US Borrower and fiscal quarter of Equinix ended on September 30, 2014 (provided that the Restricted Subsidiaries, calculation of the Consolidated Net Lease Adjusted Leverage Ratio shall be on a consolidated basis, before and pro forma basis after giving effect to (A) the execution Indebtedness incurred (x) hereunder and delivery the use of the Loan Documents and all Credit Extensions to be made proceeds thereof on the Closing DateDate and (y) pursuant to the 5.375% Senior Notes Due 2022 and the 5.750% Senior Notes Due 2025 and (B) the redemption of the 7.00% Senior Notes Due 2021), signed by a Responsible Officer of the Borrower;
(xxixi) pay-off statements and/or lien release authorizations from (A) the Audited Financial Statements Existing Administrative Agent with respect to interest, fees and expenses under the Unaudited Quarterly Financial StatementsExisting Credit Agreement and other Existing Loan Documents, and (B) such other secured parties of record shown on any of the financing statements referred to in subclause (iii)(C) above, to the extent such financing statements disclose Liens on the Collateral;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuer or the Swing Line Lender or any Lender Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and Agent, the Joint Left Lead Arrangers on Arranger or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related including, without limitation, any fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) Lenders as shall have been paid;separately agreed upon in writing in the amounts so specified.
(dc) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before December 29, 2014. Without limiting the generality of the Borrowers and provisions of the penultimate paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Equinix Inc), Credit Agreement (Equinix Inc)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer Issuers and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes executed by evidence that the Borrowers Collateral Documents shall be effective to create in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions for the benefit of the Mortgages to reflect Secured Parties, a legal, valid and enforceable first security interest and Lien upon the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavitsCollateral, as applicableincluding, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together withwithout limitation:
(A) searches of UCC filings in the jurisdiction of organization or formation of each Loan Party, in each jurisdiction where a filing would need to the extent required thereby and not previously delivered be made in order to perfect the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered ’s security interest in the name of such nominee or nominees as Collateral, and in each other jurisdiction requested by the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blankAgent,
(B) proper financing statements, Personal Property Security Act financing statements or on file in such jurisdictions and evidence that no Liens exist other filings than Liens permitted hereunder,
(C) proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions each jurisdiction that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,thereby;
(D) certificates and instruments representing the Securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(E) [Reserved]; and
(F) evidence of the completion of that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xiv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiv) a favorable opinion of G▇▇▇▇▇▇▇▇ & ▇T▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of this Agreement and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixvii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2016 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxviii) [reserved];
(ix) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, (on a consolidated basis, before and after giving effect to the execution and delivery basis with its Restricted Subsidiaries) as of the Loan Documents and all Credit Extensions to be made on Closing Date from its chief financial officer, substantially in the Closing Dateform of Exhibit N;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiix) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxivxi) [Reservedreserved];
(xxvxii) evidence that the Canadian Borrower principal of and interest on, and all other amounts owing in respect of, the Indebtedness (except for Existing Letters of Credit which shall continue hereunder) under the Existing Credit Agreement has complied been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C IssuerIssuers, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations Administrative Agent and warranties Lenders shall have received all documentation and other information requested by the Administrative Agent and Lenders in order to comply with requirements of regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (TopBuild Corp), Credit Agreement (TopBuild Corp)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent, other than those matters specified in the Post-Closing Letter referenced in Section 7.17:
(a) The Administrative Agent’s receipt Agent shall have received executed counterparts of (i) this Agreement, (ii) the followingPledge and Security Agreement, (iii) the Intellectual Property Security Agreements and (iv) if requested by any Lender pursuant to Section 2.11, a Note or Notes, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each the foregoing properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and each sufficient in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory number for distribution to the Administrative Agent, amending such terms each Lender and provisions of the Mortgages to reflect the effectiveness of this Agreement;Borrower.
(vb) mortgage tax affidavits The Collateral Agent shall have received Uniform Commercial Code financing statements in the state of incorporation or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable formation of each Loan Party in order to perfect and otherwise in form protect the first priority liens and substance reasonably satisfactory to security interests created under the Administrative Agent;
(vi) the Pledge and Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Shares referred to therein in the Pledge and Security Agreement accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions evidence that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement actions that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect and protect the liens and security interests created under the Pledge and Security Agreement and the Intellectual Property Security Agreements has been taken.
(c) The Administrative Agent shall have received a duly executed Perfection Certificate dated on or prior to the Closing Date, the results of a recent Lien and judgment search in each relevant jurisdiction with respect to Holdings, the Borrower and those of the Subsidiaries that shall be Subsidiary Guarantors or shall otherwise have assets that are included in the Collateral, which such search shall reveal no Liens created therebyon any of the assets of Holdings, the Borrower or any of such Subsidiaries except for Liens expressly permitted by Section 8.01 and except for Liens to be discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Collateral Agent.
(d) The Collateral Agent shall have received:
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to Collateral Agent;
(ii) in the case of each material Leasehold Property that is a Mortgaged Property, use commercially reasonable efforts to obtain (A) if required by the terms of the related lease, a Landlord Consent and Estoppel and (B) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iii) with respect to each Mortgage, except as may be agreed to by Collateral Agent, in its reasonable discretion, a mortgagee’s policy of title insurance (or marked up unconditional signed title insurance commitment or pro forma for such insurance having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount equal to not less than 110% of the fair market value of such Mortgaged Property and fixtures, which fair market value is set forth on Schedule 1.01(c), which policy (or marked up unconditional signed title insurance commitment or pro forma for such insurance having the effect of a policy of title insurance) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) name the Collateral Agent and each of the other Secured Parties as insureds thereunder, (D) be in the form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies) where available, (E) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (F) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to the Collateral Agent) and affirmative coverage as shall be reasonably requested by the Collateral Agent (including, but not limited to, endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit/future advance, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot and so-called comprehensive coverage over covenants and restrictions), and (G) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) Surveys with respect to each Mortgaged Property, other than as agreed by the Administrative Agent;
(v) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state in which a Mortgaged Property is located with respect to the enforceability of the form(s) of Mortgages to be recorded in such state and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(Evi) evidence that all other action that the a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property.
(e) The Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 2 contracts
Sources: Credit Agreement (MacDermid Group Inc.), Credit Agreement (MacDermid Group Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Post Closing Agreement, duly executed by each Borrower of the parties thereto;
(iv) the Subordination Agreement, duly executed by each of the parties thereto;
(v) the Security Agreement and the Pledge Agreement, duly executed by each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged pledged Equity Interests referred to therein in the Pledge Agreement accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, instruments evidencing any pledged Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act Uniform Commercial Code financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures Agreement and the Canadian Debenture Pledge Agreements Agreement covering the Collateral described in the Security Agreement, the Canadian Debentures Agreement and the Canadian Debenture Pledge AgreementsAgreement,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(D) the Control Agreements, in each case as referred to in the Security Agreement and the Pledge Agreement and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the Pledge Agreement has been taken taken;
(vi) Mortgages, covering all Material Real Estate of the Loan Parties, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or provisions acceptable to the Administrative Agent made therefor),
(B) with respect to all Material Real Estate of the Loan Parties other than the Silver Dollar Pipeline and the Cushing Tanks, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) with respect to all Material Real Estate of the Loan Parties other than the Silver Dollar Pipeline and the Cushing Tanks, American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated as of a recent date acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) with respect to the ▇▇▇▇▇▇▇ Storage Facility and the ▇▇▇▇▇▇▇ Tanks, estoppel and consent agreements executed by the lessor of such leased real property, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Mortgages,
(F) standard flood hazard determination forms and, if any property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Borrower as to the existence of duly executed payoff lettersa special flood hazard and, UCC-3 termination statements if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and Personal Property Security (y) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act discharge verification statements)of 1994 or as otherwise required by the Administrative Agent, and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and the GP as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and the GP is duly organized or formed, and that each Borrower Loan Party and each Guarantor the GP is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiix) with respect a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to any Luxembourg the Loan PartyParties, a certificate of an authorized signatory of addressed to the Administrative Agent and each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of associationLender, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on to the date of that certificate, (B) that attached thereto is a true matters concerning the Loan Parties and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents as the Required Lenders may reasonably request;
(x) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, local counsel to which such Luxembourg the Loan Party is a party Parties in Texas, addressed to the Administrative Agent and that such resolutions have not been modifiedeach Lender, rescinded or amended and are in full force and effect, (C) as to the incumbency matters concerning the Loan Parties and specimen signature of each officer executing any the Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by Documents as the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedingsRequired Lenders may reasonably request;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, local counsel to the Loan PartiesParties in Oklahoma, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xii) a favorable opinion of Quattlebaum, Grooms, ▇▇▇▇ & ▇▇▇▇▇▇ PLLC, local counsel to the Loan Parties in Arkansas, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiii) a favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., local counsel to the Loan Parties in Arizona, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all governmental and third party consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxv) a certificate signed by a Responsible Officer of the US Borrower GP certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxvi) a certificate of a Financial Officer unaudited consolidated financial statements of the US Borrower and its Subsidiaries for the three fiscal quarter period ended September 30, 2013;
(xvii) pro forma forecasts of the Borrower and its Subsidiaries on a consolidated basis, prepared by management of the Borrower, of consolidated balance sheets and statements of operations and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended December 31, 2013 giving effect to the Transactions described in clauses (a), (b) and (e) of the definition thereof occurring on or prior to the Closing Date and the Closing Date Drop Downs;
(xviii) forecasts of the Borrower and its Subsidiaries on a consolidated basis, prepared by management of the Borrower, of consolidated balance sheets and statements of operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the first year following the Closing Date and on an annual basis for the succeeding three years thereafter;
(xix) certificates attesting to the Solvency of the US Borrower and the Restricted SubsidiariesLoan Parties, on taken as a consolidated basiswhole, before and after giving effect to the execution Transactions and delivery the initial Credit Extensions hereunder, from the chief financial officer of the Loan Documents GP;
(xx) a certificate limited to Section 5 of the Compliance Certificate (together with the financial covenant analyses and all Credit Extensions information set forth on Schedules 1, 2, 3 and 4 attached thereto) as of the fiscal year ended December 31, 2013 after giving pro forma effect to be made on the Transactions described in clauses (a), (b) and (e) of the definition thereof or prior to the Closing DateDate and the Closing Date Drop Downs;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the including certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all property and general liability insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxxii) [Reserved]a certificate of a Responsible Officer of the GP certifying true, correct and complete copies of all Material Contracts to the extent not previously provided;
(xxvxxiii) evidence that the Canadian Borrower Existing Credit Agreement has complied been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixxiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender No event or condition that has had or could be reasonably expected, either individually or in the aggregate to have a Material Adverse Effect shall have receivedoccurred since December 31, at least five 2012.
(5c) days prior to the Closing DateThere shall be no actions, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulationssuits, proceedings, claims or disputes pending or, to the extent requested at least five knowledge of the Borrower threatened in any court or before any arbitrator or Governmental Authority, by or against any Loan Party or any of its Restricted Subsidiaries or against any of their properties or revenues that (5a) Business Days prior purport to affect or pertain to this Agreement or any other Loan Document, or any of the Closing Datetransactions contemplated hereby, or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Administrative Agent shall have received the Audited Financial Statements.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees fees, including upfront fees, required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(df) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) two Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(eg) The representations and warranties Administrative Agent shall have received any existing environmental reports of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document are true its Subsidiaries and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which environmental reports shall be true in form and correct in substance reasonably satisfactory to the Administrative Agent and the Lenders.
(h) The Loan Parties shall have provided to the Administrative Agent all respects) on documentation and as of other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the date of PATRIOT Act, that has been reasonably requested at least five Business Days prior to the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;Date by any Lender.
(i) The Existing Loans and Existing L/C Advances (if any) Closing Date Drop Downs shall have been paid in full (been, or will be paid in full substantially concurrently with the closing of this Agreement as Closing Date be, consummated in accordance with the terms of the date hereofClosing Date Drop Down Documents and applicable Laws.
(j) (The Borrower shall have received any consents, permits, licenses and approvals of any Governmental Authority or any other Person and required in accordance with applicable Laws, or in accordance with any document, agreement, instrument or arrangement to which payment mayany Credit Party is a party, for the avoidance of doubt, be made in connection with the proceeds consummation of the Closing Date Drop Downs.
(k) The Administrative Agent and each of the Lenders shall have received from the Borrower the Borrower’s risk management policy with respect to its Crude Oil Logistics Business and such risk management policy shall be in form and substance reasonably satisfactory to the Administrative Agent.
(l) The Administrative Agent shall be satisfied with the intercompany arrangements between JP Supply and certain of its Affiliates (including receipt of (a) a Borrowing made under this Agreement transportation services agreement relating to the transportation of crude oil on the Closing Date) Great Salt Plains Pipeline and (iib) a transportation services agreement relating to the transportation of crude oil on the Red River Pipeline, in each Existing Lender case in form and substance reasonably satisfactory to the Administrative Agent and the Lenders).
(including each Exiting Lenderm) The Borrower shall have been paid received a cash common equity investment from the Permitted Holders in an amount no less than $8,000,000.
(or will be paid substantially concurrently with n) The Administrative Agent shall have received a summary report from the closing of this Agreement on Borrower setting forth in appropriate detail the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingcalculati
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (JP Energy Partners LP)
Conditions of Initial Credit Extension. The obligation of each Lender and the L/C Issuer and each Lender to make its any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedfollowing items, each properly executed by a Responsible Officer of the signing applicable Loan Party, each dated as of the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract legal opinion from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent ▇ and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request▇▇▇▇▇ ▇▇▇;
(xivii) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lendersecretary’s certificates, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably borrowing request and (ii) local counsel to closing certificates set forth on the Loan Parties in British Columbia, Canada closing checklist attached hereto as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestExhibit G;
(xviii) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a solvency certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate form of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsExhibit I; and
(xxiiiiv) evidence the Loan Documents, except for those items that all insurance required are specifically permitted herein to be maintained pursuant to delivered after the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may requireRestatement Effective Date.
(b) Each Lender The representations and warranties of the Loan Parties contained in Article V or any other Loan Document, shall have receivedbe true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) on and as of the date of such initial Credit Extension, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, except to the extent requested at least five that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (5or in all respects for such representations and warranties that are by their terms already qualified as to materiality) Business Days prior to the Closing Date, and (ii) to the extent requested by as of such Lender, a Beneficial Ownership Certification in relation to each Borrowerearlier date;
(ic) All fees required to No Default or Event of Default shall have occurred and be paid to the Administrative Agent continuing, or would immediately result from such initial Credit Extension and the Joint Lead Arrangers on or before consummation of the Closing Date shall have been paid, (ii) all fees required to be paid to Transaction and the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paidLoan Documents;
(d) Unless waived by the Administrative AgentAll accrued costs, the Borrowers shall have paid fees and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable out-of-pocket fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties the fees and expenses of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Dateadvisors) and (ii) each Existing Lender (including each Exiting Lender) other compensation due and payable to Administrative Agent, the Arrangers and the Lenders on or before the Restatement Effective Date shall have been paid (or will be paid substantially concurrently with deducted from the closing initial funding of this Agreement on the date hereofLoans hereunder), to the extent set forth in the Fee Letter or otherwise invoiced at least two (2) all accrued interest, accrued fees, and other amounts payable Business Days prior to the Restatement Effective Date (other than except as otherwise reasonably agreed by the outstanding principal amount of Existing Loans and ExistingBorrower Agent).
Appears in 2 contracts
Sources: Fourth Amendment to Amended and Restated Credit Agreement and First Amendment to Pledge and Security Agreement (e.l.f. Beauty, Inc.), Credit Agreement (e.l.f. Beauty, Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder hereunder, and the amendment and restatement of the Existing Credit Agreement pursuant to the terms hereof, is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, (x) in the case of certificates of governmental officials, a recent date before the Closing Date, and (y) with respect to the Security Agreement and the Guaranties, dated as of their original date of execution) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement Agreement, the Borrower Affirmation, and the Guarantya Guaranty or an Affirmation and Consent from each Guarantor, as applicable;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) copies of proper financing statements, Personal Property Security Act financing statements filed or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of in all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect and protect the Liens created therebythereby shall have been taken, andcompleted or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements);
(Eiv) the Intellectual Property Security Agreement, duly executed by each Loan Party, together with evidence that all other action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications (including, without limitation, Organizational Documents and good standing certificates) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor the Guarantors is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do be so qualified could not reasonably be expected to have a Material Adverse Effect;
(xivii) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, as to customary the matters concerning the Loan Parties set forth in Exhibit J-1, and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may shall reasonably request and request;
(iiviii) opinions of local counsel for the Loan Parties, addressed to each Agent and each Lender, as to the Loan Parties matters set forth in British ColumbiaExhibit J-2, Canada and as to customary such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may shall reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements January 3, 2009, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on Loan Parties (taken as a consolidated basis, before and whole) after giving effect to the execution and delivery Transaction, from the Chief Financial Officer of the Loan Documents and all Credit Extensions to be made on the Closing DateBorrower;
(xxixi) the Audited Financial Statements and the Unaudited Quarterly Financial Statementsfinancial statements described in Section 5.05(a);
(xxiixii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession a certified copy of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; andSponsor Management Agreement;
(xxiiixiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxivxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect a Committed Loan Notice and/or Letter of Credit Application, as applicable, relating to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowinginitial Credit Extension; and
(xxviiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender Agent reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees and expenses required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paidpaid in full in cash.
(c) There shall exist no action, (ii) all fees required to be paid suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (knowledge of any Loan Party or any amendments of its Subsidiaries, threatened before any Governmental Authority or supplements thereto) shall arbitrator that could be reasonably likely to have been paid;a Material Adverse Effect.
(d) Unless waived by All governmental authorizations and all material third party consents and approvals, if any, necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect, and no Law shall be applicable in the reasonable judgment of the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);Transaction.
(e) The representations and warranties of the Borrowers and each other Loan Party information contained in Article V or any other Loan Document are true the Information Memorandum, as supplemented to the Closing Date and taken as a whole, shall be complete and correct in all material respects (except for such representations respects, and warranties that no changes, occurrences or developments shall have a materiality occurred, and no information shall have been received or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of discovered by the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to haveAdministrative Agent that, either individually or in the aggregate, could reasonably be expected to (1) have (or have had) a Material Adverse Effect;material adverse effect on business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise) of the Consolidated Parties, taken as a whole, (2) adversely affect (or has adversely affected) the ability of the Borrower or any Guarantor to perform its obligations under any of the Loan Documents or (3) adversely affect (or has adversely affected) the rights and remedies of the Lenders under the applicable loan documentation.
(if) The Existing Loans and Existing L/C Advances (if any) Borrower shall have been paid in full to each lender under the Existing Credit Agreement (or will be paid in full substantially concurrently with to the closing Administrative Agent on behalf of this Agreement as of the date hereof) (which payment maysuch lenders, for further payment to such Lender on the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on Business Day immediately following the Closing Date) all principal, all interest accrued through the Closing Date and all other amounts due and owing to such lender under the Existing Credit Agreement (ii) including, without limitation, all losses, costs and expenses to which it is entitled pursuant to Sections 3.05 and 10.05 of the Existing Credit Agreement). Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Michael Foods Inc/New), Credit Agreement (Michael Foods Inc/New)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer Issuers and each Lender the Lenders to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) facsimiles unless otherwise specified, each properly executed by a Responsible Officer on behalf of the signing Loan PartyParty to the extent execution thereof is contemplated thereby (and, if applicable, by the Administrative Agent and/or the Lenders) each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Notes a Note executed by the Borrowers each Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations effective upon receipt of Mortgages, duly executed by the approval of the applicable Loan Party Gaming Authority (as indicated in the proviso below), a pledge agreement (together with each other pledge agreement and pledge agreement supplement delivered pursuant to Section 6.09, in each case as amended, the Administrative Agent and otherwise “Pledge Agreement”), in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, each case duly executed by each Borrower and each GuarantorPledgor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates or other instruments representing the Pledged Equity referred to therein (as defined in the Pledge Agreement) in suitable form for transfer by delivery or, as applicable, shall be accompanied by undated stock powers each Pledgor’s endorsement, where necessary, or duly executed in blank instruments of transfer or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed assignment in blank,, all in form and substance satisfactory to Administrative Agent;
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,; and
(C) copies a certificate executed by a financial or accounting officer of each Luxembourg Loan Partythe Company setting forth the aggregate amount of the obligations that may be secured by Liens as of the Closing Date pursuant to Section 5.1(c) of the indenture governing the Company’s shareholder register 7.750% senior unsecured notes due 2022 and UCCthe similar provisions contained in the Company’s other indentures governing its other senior unsecured notes, Personal Property Security Actwhich certificate shall include a calculation of the Company’s Consolidated Net Tangible Assets (as defined in such indenture or such other indentures); provided, federal and state tax and bankruptcy lien searcheshowever, notwithstanding the foregoing or anything to the contrary in the Pledge Agreement, receipt of the approval of the Mississippi Gaming Commission, the Nevada Gaming Commission, the New Jersey Division of Gaming Enforcement, the New Jersey Casino Control Commission or the New York State Gaming Commission, as applicable, to the pledge of the Equity Interests in each caseOperating Entity that is licensed by or registered with the Mississippi Gaming Commission, dated the Nevada Gaming Commission, the New Jersey Division of Gaming Enforcement, the New Jersey Casino Control Commission or the New York State Gaming Commission, as applicable, shall not be a condition to the Closing Date (collectively, the “Specified Consents”). For the avoidance of a recent date doubt, to the extent that any of the Specified Consents are obtained, the requirements of this Section 4.01(a)(iii) shall be required to be satisfied with respect to the Borrower applicable Pledgor to which such Specified Consent applies, and each any other Loan Party as Pledgor shall be required to satisfy the requirements of this Section 4.01(a)(iii), and cause to be delivered certificates and opinions of the Closing Date,
type described in Section 4.01(a)(iv) and (Dvi), promptly, and in any event, within five (5) evidence Business Days of the completion receipt of all other actions, recordings and filings of or a Specified Consent with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)pledge by such Pledgor;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyDocuments;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of Milbank LLP, special New York counsel to the Loan Parties, ▇▇▇▇▇▇ Snow LLP, special Nevada corporate and gaming counsel to the Loan Parties, ▇▇▇▇▇▇ Snow LLP, special Mississippi counsel to the Loan Parties, Fox Rothschild LLP, special New Jersey corporate and gaming counsel to the Loan Parties and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ LLP, special Ohio counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed satisfactory to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;Agent; and
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixvii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance condition since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) the accuracy of the representation and warranty set forth in Section 5.15 and the extent of the inquiry made by such Responsible Officer in connection therewith and (D) as to the absence of any action, suit, investigation or proceeding relating to the Transactions pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(xxviii) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to Evidence that the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessmentsAgreement has been, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion substantially concurrently with the condition of Closing Date is being, paid in full or defeased and terminated and all liens securing obligations under the properties of Existing Credit Agreement have been, or substantially concurrently with the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsClosing Date are being, released; and
(xxiiiix) evidence certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that all insurance required name any Pledgor as debtor and that are filed in those state and county jurisdictions in which any Pledgor is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be maintained pursuant to covered by the Loan Collateral Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, other than Liens permitted under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d8.03);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, concurrently be paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to concurrently be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(dc) Unless waived by the Administrative Agent, the Borrowers Company shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) three Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent);
(d) The Closing Date Refinancing shall have been consummated or will be consummated substantially concurrently; and
(e) The representations Lenders shall have received at least three (3) Business Days prior to the Closing Date all outstanding documentation and warranties other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Without limiting the generality of the Borrowers and provisions of Section 10.03(e), for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding the foregoing, perfection of the date Liens of the Closing Date, except to Administrative Agent upon the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date Equity Interests of the Audited Financial Statements that has had or could Operating Entities by the Pledgors shall not be reasonably expected to have, either individually or in required until the aggregate, a Material Adverse Effect;
earlier of (ix) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full 180 days after the Closing Date (or will be paid in full substantially concurrently with such longer period of time as is consented to by the closing of this Agreement Administrative Agent or as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Dateis required to obtain any necessary Gaming Approvals) and (iiy) each Existing Lender five (including each Exiting Lender5) shall have Business Days from the date on which the applicable Gaming Approval has been paid obtained with respect to the pledge of such Equity Interests by the applicable Pledgor (or will be paid substantially concurrently with such longer period of time as is consented to by the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingAdministrative Agent).
Appears in 2 contracts
Sources: Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International)
Conditions of Initial Credit Extension. This Agreement shall become effective as of the Effective Date upon the execution and delivery of a counterpart signature page hereof by each of the parties hereto and receipt by the Administrative Agent of each such executed signature page, and satisfaction or effective waiver of each of the conditions precedent set forth below. The obligation of each Floor Plan Lender to continue or make the Floor Plan Loans at or after the Effective Date in accordance with the terms herein and the obligation of the L/C Issuer and each Lender to make its initial issue Letters of Credit Extension hereunder hereunder, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and each Guaranty, sufficient in number for distribution to the GuarantyAdministrative Agent, each Lender and the Company;
(ii) Notes a Floor Plan Note executed by the Borrowers each Borrower in favor of each Floor Plan Lender requesting a Floor Plan Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly the Security Agreement executed by the applicable each Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, Pledge Agreement duly executed by each Borrower Loan Party and each GuarantorFRI, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged certificated Equity referred to therein Interests pledged thereunder accompanied by undated stock powers executed in blank or registered in blank, and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indebtedness indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register account control agreements and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searchessecurities account control agreements, in each case, dated case as of a recent date with respect referred to in the Borrower Security Agreement and each other Loan Party as of duly executed by the Closing Dateappropriate parties,
(D) evidence of the completion of that all other actions, recordings and filings of or with respect to the Security Agreement that and the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action Pledge Agreement that the Administrative Agent may deem necessary or desirable in order to perfect perfect, on a first priority basis (subject to exceptions as permitted in the Loan Documents), the Liens created under the Security Agreement thereby has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements statements, landlords’ and Personal Property Security Act discharge verification statementsbailees’ waiver and consent agreements, third party consents and intercreditor agreements);
(viiiv) a Canadian Security Confirmation duly executed by each Canadian Loan PartyUCC search results showing only acceptable liens (or arrangements satisfactory to the Administrative Agent shall have been made to remove any unacceptable liens promptly after the Effective Date);
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xivii) with respect to any Luxembourg Loan Partyfavorable opinions of ▇▇▇▇▇▇, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPP.A., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of each of the US Borrower Company and FRI certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) as to the absence of any action, suit, investigation or proceeding pending, or to the knowledge of the Company or FRI, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(xxix) a certificate certified copies of a Financial Officer each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries as the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateAdministrative Agent shall request;
(xxix) the Audited Financial Statements a duly completed Compliance Certificate demonstrating a Consolidated Current Ratio of not less than 1.180 to 1.000 and the Unaudited Quarterly Financial Statementsa Fixed Charge Coverage Ratio of not less than 1.250 to 1.000 as of June 30, 2015;
(xxiixi) if required by the Administrative Agent in its sole discretion, audits with respect to the extent not previously provided or made available Collateral containing results satisfactory to the Administrative Agent (including pursuant to and the Existing Credit Agreement)Lenders, provided that, whether or not any such audit is performed, the Administrative Agent and the Lenders shall have received all be entitled to rely on information provided by any lender of the Borrowers or their Subsidiaries as to any vehicles and existing Phase I environmental assessments loans being refinanced or paid down on the Effective Date with Floor Plan Loans hereunder, and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reportsfurthermore, in the event of any disputed or duplicate vehicle loan (each case to the extent a “Disputed Existing Loan”) being refinanced or paid down by any Floor Plan Loan, in the possession of reliance on information provided by the Borrowers, as any Subsidiary or any existing lender, then the Administrative Agent may reasonably require Borrowers will (jointly and the Administrative Agent shall be satisfied in its reasonable discretion severally), upon demand, repay such Floor Plan Loan, including accrued interest thereon, regardless of whether such Disputed Existing Loan has been resolved with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Lawsprior lender; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Effective Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date Effective Date, including the Upfront Fee (as defined in the Fee Letter) for each Lender, shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Company shall have paid paid: (i) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) all other expenses of the Administrative Agent.
(d) There shall not have occurred a Material Adverse Effect since December 31, 2014. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Camping World Holdings, Inc.), Credit Agreement (Camping World Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent, except to the extent such conditions are subject to the Post-Closing Agreement:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations executed counterparts of Mortgages, duly executed by the applicable each other Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorDocument, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing instruments evidencing the Pledged Equity referred to therein Debt accompanied by undated stock powers allonges executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(ED) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Copyright Security Agreement, the Trademark Security Agreement and the Patent Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) a Canadian Security Confirmation the Perfection Certificate, duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor the Guarantors is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇, ▇▇▇▇ & ▇’▇▇▇▇▇▇▇▇, LLPP.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit H-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivviii) a favorable opinion of (i) local ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties in Canada Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit H-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transactions (other than with regard to the Acquisition) (including, governmental, shareholder and third party consents such as clearance under the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Act) and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) a certificate of signed by a Financial Responsible Officer of the US Borrower certifying that no material change has occurred since March 31, 2009, the date of the pro forma combined balance sheet of the Borrower and its Subsidiaries after giving effect to the Transactions which the Borrower previously provided to the Administrative Agent, with respect to either the Borrower or the Target Company or their respective Subsidiaries which would have a material adverse effect on the combined financial condition of the Borrower and the Target Company and their respective Subsidiaries as reflected in such pro forma combined balance sheet;
(xii) a business plan and budget of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower for a period at least through the Maturity Date, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries, and prepared on a quarterly basis for the first year following the Closing Date;
(xiii) interim financial statements for the Borrower and the Target Company as of a date no more than 60 days prior to the Closing Date;
(xiv) a certificate attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateTransactions, from its chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixv) evidence that all property and liability insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insuranceinsurance and endorsements, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxvi) [Reserved]a Borrowing Base Certificate duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower relating to the initial Credit Extension;
(xxvxvii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended June 30, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(xviii) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect loans made pursuant to the Mortgages in form Existing Credit Agreement by any lender other than those party to this Agreement have been paid off and substance satisfactory that letters of credit issued under the Existing Credit Agreement by any letter of credit issuer other than those party to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowingthis Agreement have been replaced; and
(xxviiixix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and such counsel).
(d) The Administrative Agent, Lenders and Arranger shall have completed a due diligence investigation, including such collateral reviews, field examinations, audits, assessments or other reviews that the Administrative Agent deems appropriate, of the Borrower, the Target Company and their respective Subsidiaries in scope, and with results, satisfactory to the Administrative Agent), Lenders, and Arranger and shall have been given such access to the management, records, books of account, contracts and properties of the Borrower, the Target Company and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as they shall have requested;
(e) The representations Administrative Agent shall be satisfied with the Borrower’s corporate, capital and warranties ownership structure.
(f) The Administrative Agent and Arranger shall be satisfied that there has been no material adverse change in the business, assets, properties, liabilities, operations, condition or prospects of the Borrowers and each other Loan Party contained Borrower or the Target Company.
(g) No action, suit, investigation, litigation or proceeding pending or threatened in Article V any court or before any other Loan Document are true and correct arbitrator or governmental instrumentality could, in all material respects (except for such representations and warranties that the judgment of the Administrative Agent or Arranger, reasonably be expected to have a materiality material adverse effect on the business, assets, properties, liabilities, operations, condition or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as prospects of the date Borrower or the Target Company, or could impair the Borrower’s ability to perform any of its obligations under the Loan Documents, or could reasonably be expected to materially and adversely affect the Transactions.
(h) On the Closing Date, except the Borrower shall discharge all of the $23,032,000 of outstanding Senior Secured Notes in accordance with the applicable provisions of the Senior Secured Notes Indenture. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to the Pledge and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, Agreement duly executed by each Borrower and each Guarantor, Loan Party; together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity Shares referred to therein in the Pledge and Security Agreement accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, UCC of all jurisdictions that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) a Canadian Security Confirmation deeds of trust, mortgages, leasehold deeds of trust and leasehold mortgages, in substantially the form of Exhibit I (with such changes as may be reasonably satisfactory to the Administrative Agent and Collateral Agent and their counsel to account for local law matters) and covering substantially all of the operating assets of the Borrower and its Subsidiaries owned on the Closing Date (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.13, in each case as amended, the “Mortgages”), duly executed by each Canadian the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been or will be paid upon recording,
(B) in respect of the Chico Plant a fully paid title insurance policy (the “Mortgage Policies”) in form and substance, with endorsements and in amounts reasonably acceptable to the Administrative Agent and Collateral Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent and Collateral Agent, insuring the Mortgage in respect of such property to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, and
(C) evidence that all other action that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of B▇▇▇▇▇▇▇▇ & G▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties set forth in Exhibit G and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvviii) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestInitial Financial Statements;
(xviix) a favorable opinion of local counsel to certificates or binders evidencing Loan Parties’ insurance in effect on the Loan Parties in Oklahoma addressed to date hereof naming the Administrative Collateral Agent as loss payee and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestadditional insured;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower General Partner certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements September 30, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the Closing Date demonstrating that such ratio does not exceed 5.0 to 1.0;
(xxxi) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on Loan Parties (taken as a consolidated basis, before and whole) after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements Acquisition and the Unaudited Quarterly Financial Statements;
(xxii) to Initial Public Offering, from the extent not previously provided chief financial officer, chief accounting officer, treasurer or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession controller of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsGeneral Partner; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent, the Syndication Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The Intercreditor Agreement shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(e) The representations corporate and warranties capital structure of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which Borrower shall be true and correct as disclosed in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;Registration Statement.
(f) There has been no event or circumstance since the date The consummation of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or Initial Public Offering shall have occurred on substantially the terms as contained in the aggregate, a Material Adverse Effect;Registration Statement.
(g) The Borrower shall have received sufficient proceeds from the Initial Public Offering to finance that portion of the Acquisition not funded by the use of proceeds from this Agreement.
(i) The Existing Loans Borrower has received all governmental, shareholder and Existing L/C Advances third party consents and approvals necessary to consummate the Initial Public Offering, which consents and approvals are in full force and effect, (ii) no order, decree, judgment, ruling or injunction exists which restrains the consummation of the Initial Public Offering or the transactions contemplated by this Agreement, and (iii) there is no pending, or to the knowledge of the Borrower, threatened, action, suit, investigation or proceeding which seeks to restrain or affect the Initial Public Offering, or which, if anyadversely determined, could materially and adversely affect the ability of the Borrower to consummate the Initial Public Offering.
(i) Concurrently with the consummation of the Initial Public Offering, (i) all outstanding Intercompany Indebtedness shall have been paid in full (repaid or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) forgiven and (ii) each Existing Lender (including each Exiting Lender) that portion of the loans made under the Targa Credit Agreement with respect to the assets owned by Targa North Texas and acquired in the Acquisition shall have been paid repaid and arrangements satisfactory to the Administrative Agent shall have been made for the release of the Liens securing same.
(j) The Closing Date shall have occurred on or will be paid substantially concurrently before March 15, 2007. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the closing of conditions specified in this Section 4.01, each Lender that has signed this Agreement on shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) all accrued interest, accrued fees, and other amounts payable (other than Administrative Agent shall have received notice from such Lender prior to the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Targa Resources Partners LP), Credit Agreement (Targa Resources Partners LP)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimile (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the completed Perfection Certificate and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Securities referred to therein (if such Pledged Securities is certificated) accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Intercompany Notes indorsed in blankblank and issuer acknowledges if otherwise,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security ActUnited States Patent and Trademark Office and United States Copyright Office, federal and state tax and bankruptcy judgment lien searches, in bankruptcy and pending lawsuit searches or equivalent reports or searches, each case, dated as of a recent date with respect to the Borrower and each other listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Closing Date,Administrative Agent reasonably deems necessary or appropriate, accompanied by evidence reasonably satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 7.01, or otherwise acceptable to the Administrative Agent, or have been or contemporaneously will be released or terminated or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent.
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(E) the Account Control Agreements and the Securities Account Control Agreement, in each case as referred to in the Security Agreement and duly executed by the appropriate parties, and
(EF) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal landlords’ and bailees’ waiver and consent agreements); provided that delivery of the items described in the foregoing clauses (iii)(D) through (F) shall be subject to the first paragraph of Section 4.02.
(iv) subject to the first paragraph of Section 4.02, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgage, leasehold deed to secure debt and leasehold deed of trust, in substantially the form of Exhibit H-3 (with such changes as may reasonably be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the properties listed on Schedule 4.01(a) and each other mortgages, deeds of trust, trust deeds, deeds to secure debt, leasehold mortgages, leasehold deeds to secure debt and leasehold deeds of trust delivered pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only the Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects that do not materially interfere with the use or marketability of the property,
(D) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Administrative Agent in order for the owner or holder of the fee or leasehold interest constituting such Mortgaged Property Security Act discharge verification statementsto grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(E) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the title company to issue the Mortgage Policy/ies and endorsements contemplated above;
(F) evidence reasonably acceptable to the Administrative Agent of payment by Borrower of all Mortgage Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Mortgage Policies referred to above;
(G) opinions addressed to the Administrative Agent and each of the Lenders from local counsel of the Loan Parties regarding due authorization, execution, delivery and enforceability of the Mortgages, each in form and substance reasonably satisfactory to the Administrative Agent;
(H) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken, and
(I) the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto);
(viiv) a Canadian subject to the first paragraph of Section 4.02, an intellectual property security agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Confirmation Agreement”), duly executed by each Canadian Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning substantially in the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestform set forth in Exhibit I;
(xivix) a favorable opinion of (ia) ▇▇▇▇▇▇▇▇▇ Traurig LLP, local counsel to the Loan Parties in Canada addressed to the Administrative Agent each of Texas, Georgia, and each LenderNevada (b) Johnston, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) Hinesley, Flowers, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., local counsel to the Loan Parties in British ColumbiaAlabama, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvc) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent North Carolina and each Lender(d) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma Mississippi, in each case addressed to the Administrative Agent and each Lenderthe Secured Parties, as to customary matters concerning the Loan Parties in form and the Loan Documents as the Administrative Agent may substantive reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed acceptable to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestits counsel;
(xviiix) [Intentionally omitted]
(xi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than routine change of ownership filings and other routine healthcare filings) required in connection with the consummation by such Loan Party of the Transaction and the Credit Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that that, subject to the proviso in the first paragraph of Section 4.02, the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;condition set forth under Section 4.01(h) is met.
(xxxiii) a certificate substantially in the form of a Financial Officer of the US Borrower Exhibit J attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, its Subsidiaries before and after giving effect to the execution and delivery of Transaction, from the Loan Documents and all Credit Extensions to be made on the Closing DateBorrower’s chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained (including, without limitation, flood insurance) and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxv) [Reserved];a HIPAA Business Associate Agreement, in substantially the form of Exhibit K, duly executed by Borrower and each Subsidiary that is a “covered entity” under HIPAA.
(xxvxvi) evidence that the Canadian Borrower has complied Existing Credit Agreements have been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date are being, terminated and all Liens securing obligations under the Existing Credit Agreements have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees and expenses (including reasonable fees and expenses of counsel) required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 2 contracts
Sources: Credit Agreement (Gentiva Health Services Inc), Credit Agreement (Gentiva Health Services Inc)
Conditions of Initial Credit Extension. The obligation of each any L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyDomestic Borrower;
(ii) Notes a Revolving Credit Note executed by each of the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(viA) the Security AgreementCollateral Documents or any reaffirmations, amendments or modifications thereto, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby under local law to ensure the continuing validity and not previously delivered enforceability of such Collateral Document or to ensure the Administrative Agentcontinuing security interests in the applicable assets (and the continuing perfection thereof) granted or purported to be granted pursuant to such Collateral Documents, including, without limitation, in the assets of the Domestic Borrower, the Foreign Borrower and the Foreign Guarantors and in the Equity Interests in the Foreign Borrower, Diodes Zetex Limited and Diodes Hong Kong, and all related confirmations, authorizing resolutions, legal opinions and such other agreements, documents, certificates, if anyfilings, notarizations, and recordations,
(B) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered and instruments evidencing the Pledged Debt indorsed in blank (to the name of extent available in any non‑U.S. jurisdiction), in each case to the extent such nominee or nominees as Pledged Equity is certificated and has not previously been delivered to the Administrative Agent; and the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by have received satisfactory evidence that the Liens in favor of the Administrative Agent on the equity interests of the Foreign Loan Parties pursuant required to be pledged have been validly created, are enforceable and have been perfected under the Security Agreement indorsed in blanklaws of each applicable jurisdiction,
(BC) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable (or the foreign equivalent thereof) in order to perfect the Liens created under the Security AgreementCollateral Documents, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and Collateral Documents as well as UCC, Personal Property Security ActLien and Intellectual Property, federal charge, and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect other searches (to the Borrower extent available in any non‑U.S. jurisdiction) and each other Loan Party as of evidence satisfactory to the Closing DateAdministrative Agent that such Liens are the only Liens upon the Collateral, except ▇▇▇▇▇ permitted hereunder,
(D) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(E) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(EF) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect or continue perfection of the Liens created under the Security Agreement Collateral Documents has been taken (including receipt of duly executed payoff letters, UCC-3 UCC‑3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivvii) Reserved;
(viii) a favorable opinion of (i) ▇▇▇▇▇ & ▇▇▇▇▇ LLP, local counsel to the Loan Parties in Canada the United Kingdom, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party the Domestic Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Domestic Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) no action, suit, investigation, litigation or proceeding pending or, to the knowledge of either ▇▇▇▇▇▇▇▇, threatened in any court or before any arbitrator or governmental instrumentality that in the Administrative Agent’s or Arrangers’ judgment could reasonably be expected to have a certificate of a Financial Officer Material Adverse Effect;
(xii) annual audited financial statements of the US Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended 2022;
(xiii) interim financial statements of the Domestic Borrower and its Subsidiaries on a consolidated basis described in Section 5.05(b);
(xiv) pro forma financial statements for the Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal period ending on March 31, 2023, including forecasts prepared by management of the Domestic Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Domestic Borrower and its Subsidiaries on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement;
(xv) certificates attesting to the Solvency of the US each Borrower and the Restricted Subsidiaries, on a consolidated basis, their respective Subsidiaries before and after giving effect to the execution financing under this Agreement and delivery the transactions contemplated hereby, from the chief financial officer of the Loan Documents Domestic Borrower and all Credit Extensions to be made on from a Responsible Officer of the Closing DateForeign Borrower;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixvi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxivxvii) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements documentation and other information as to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to each Loan Party as requested by the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingAgent and each Lender in order to comply with requirements of the PATRIOT Act; and
(xxviiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any each L/C Issuer, the Swing Line Swingline Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have receivedobtained all applicable licenses, at least five consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents.
(5c) days prior to The Borrowers shall have repaid Revolving Credit Loans, Swingline Loans and L/C Borrowings and/or Cash Collateralized the L/C Obligations (other than the L/C Borrowings) in an aggregate amount such that the Total Revolving Credit Outstandings do not exceed the Revolving Credit Facility in effect following the Closing Date, (i) taking into account the instructions by the Domestic Borrower to make such transfers as may be necessary to ensure that all information requested by it pursuant to Section 11.19 Outstanding Amounts and for purposes Commitments are in accordance with the Applicable Percentages of compliance the Lenders in accordance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;this Agreement.
(id) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(de) Unless waived by the Administrative Agent, the Borrowers The Domestic Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Domestic Borrower and the Administrative Agent);.
(ef) The representations and warranties Lenders shall have completed a due diligence investigation of the Borrowers and each other Loan Party contained their respective Subsidiaries in Article V or any other Loan Document are true scope, and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualificationwith results, which shall be true and correct in all respects) on and as of the date of the Closing Date, except satisfactory to the extent that such representations Lenders, and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as they shall have requested. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the closing of conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Diodes Inc /Del/)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement Agreement, the Guaranty and the GuarantyIntercreditor Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowers;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G (iv) amendments as it may be amended, amended and restated, supplemented or otherwise modified from time to and reaffirmations of Mortgagestime, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower Loan Party, and a pledge agreement, in substantially the form of Exhibit H (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Pledge Agreement”), duly executed by each GuarantorLoan Party party thereto, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Pledged Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements Financing Statements (or other filings the Canadian equivalent) in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures Agreement and the Canadian Debenture Pledge AgreementsAgreement,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy completed lien searches, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in each case, dated as of a recent date with respect the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) the Account Control Agreements and the Securities Account Control Agreement, in each case as referred to in the Security Agreement and duly executed by the appropriate parties,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian the Post-Closing Agreement shall have been duly executed by the Borrowers and delivered to the Administrative Agent;
(v) Intellectual Property Security Confirmation Agreements, duly executed by each Canadian applicable Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease it is qualified as a foreign corporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure other entity to do so could not reasonably be expected to have a Material Adverse Effectbusiness;
(xiviii) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xivix) a favorable an opinion of (i) Kreis, Enderle, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., local counsel to the Loan Parties Cello-Foil Products, Inc. in Canada Michigan, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(xvx) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request[Intentionally Omitted];
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxiii) a certificate business plan and budget of Intermediate Holdings and its Subsidiaries on a Financial Officer consolidated basis, including forecasts prepared by management of Intermediate Holdings, of consolidated balance sheets and statements of income or operations and cash flows of Intermediate Holdings and its Subsidiaries on a monthly basis for the US Borrower first year following the Closing Date;
(xiv) certificates attesting to the Solvency of the US Borrower Intermediate Holdings and the Restricted Subsidiaries, Intermediate Holdings and its Subsidiaries on a consolidated basis, both before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateTransaction, from Intermediate Holdings’ chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, including, without limitation, flood insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxvi) [Reserved];
(xxv) evidence that Administrative Agent and Arrangers shall have received from the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to pro forma consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the Mortgages in form Closing Date, and substance satisfactory to reflecting the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as consummation of the Administrative Agent, any L/C IssuerTransactions, the Swing Line Lender related financings and the other transactions contemplated by the Loan Documents to occur on or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance which pro forma financial statements shall be prepared in accordance with other applicable “know your customer” and anti-money laundering rules and regulations, the Borrower’s historical methodology as posted to the extent requested at least five holders of the Existing Senior Notes on the Borrower’s web-site; and
(5xvii) Business Days prior to such other assurances, certificates or documents as the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Administrative Agent reasonably may require.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);.
(ed) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Transaction shall have been paid in full (or will be paid in full substantially concurrently with consummated pursuant to the closing terms of this Agreement, the Revolving Credit Agreement as of and the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingSenior Notes Indenture.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is on the Closing Date was subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of this Agreement, the Intercreditor Agreement in respect of the ABL Credit Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G-1 and a pledge agreement, in substantially the form of Exhibit G-2 (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, duly executed by in each case as amended, collectively, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby certificates and not previously delivered to the Administrative Agent, certificates, if any, instruments representing the Pledged Equity Securities Collateral referred to therein that are certificated accompanied by undated stock powers or instruments of transfer executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security ActUnited States Patent and Trademark Office and United States Copyright Office, federal and state tax and bankruptcy judgment lien searches, in or equivalent reports or searches, each case, dated as of a recent date listing all effective financing statements, lien notices or comparable documents (together with respect to the Borrower copies of such financing statements and each other documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches the Closing DateAdministrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted under Section 7.01),
(D) evidence A Perfection Certificate, in substantially the form of Exhibit I-1, duly executed by each of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyLoan Parties, and
(E) evidence that all other action actions, recordings and filings that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(viiiv) [Reserved];
(v) a Canadian Patent Security Confirmation Agreement and a Trademark Security Agreement (as each such term is defined in Security Agreement and to the extent applicable) (together with each other intellectual property security agreement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Canadian Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation jurisdiction of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ US LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvix) a favorable opinion of local counsel the historical financial statements referred to the Loan Parties in Luxembourg addressed to the Administrative Agent Sections 5.05(a) and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request(b);
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxi) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) as of the Closing Date, there are no actions, suits, claims, demands, investigations, inspections, audits, charges or proceedings pending or to the knowledge of any Responsible Officer of a Loan Party, threatened in writing (i) with respect to this Agreement or any other Loan Document, or (ii) which has had, or could reasonably be expected to have, a Material Adverse Effect;
(xxxii) a certificate of a Financial Officer of the US Borrower certificates attesting to the Solvency of the US Borrower and the its Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery Transaction, from its chief financial officer, substantially in the form of the Loan Documents and all Credit Extensions to be made on the Closing DateExhibit N;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxvxiv) evidence that the Canadian ABL Credit Agreement has been amended to permit the Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to and each other Loan Party’s entry into the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingDocuments; and
(xxviiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender Agent or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) two Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations and warranties of Not later than the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of fifth Business Day prior to the Closing Date, except the Administrative Agent and the Lenders shall have received from the Loan Parties all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Refinancing Amendment to Credit Agreement (Ciena Corp)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be either originals or telecopies (or electronic copies, followed in either case promptly by originals) , unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyOperating Company;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Confirmation Agreement, duly executed by each Borrower and each GuarantorCredit Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the any Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instrumentsinstruments evidencing the Pledged Debt indorsed in blank, if any, evidencing any Indebtedness pledged by to the Loan Parties extent not previously delivered to the Administrative Agent pursuant to the Security Agreement indorsed in blankExisting Credit Agreement,
(B) stamped receipt copies of proper financing statements, Personal Property Security Act financing statements duly filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, to the Canadian Debentures and extent not previously received by the Canadian Debenture Pledge AgreementsAdministrative Agent pursuant to the Existing Credit Agreement,
(C) copies completed UCC lien search requests, dated through a date not earlier than forty-five (45) days prior to the date of each Luxembourg Loan Party’s shareholder register the initial Credit Extension, for such Credit Parties as may be agreed to between the Borrowers and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searchesthe Administrative Agent, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Dateits reasonable discretion,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent any Lender may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Documents has been taken taken;
(iv) modifications to the existing Mortgages, in substantially the form of Exhibit G (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the properties identified as mortgaged on Schedules 5.08(c), (d)(i) and (d)(ii) (the “Modifications”), duly executed by the appropriate Credit Party, together with:
(A) evidence that counterparts of the Modifications have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create, together with the Mortgages, a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) modifications to the Mortgage Policies, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages, as modified by the Modifications, to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Credit Documents, and providing for such other affirmative insurance (including receipt endorsements for future advances under the Credit Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property), affidavits of no change with respect to surveys and such other documents as the Administrative Agent or title insurer may deem necessary or desirable, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken, subject only to Permitted Encumbrances;
(v) the Intercreditor Agreement, duly executed payoff letters, UCC-3 termination statements by each party thereto;
(vi) copies of the duly executed Note Purchase Agreement and Personal Property Security Act discharge verification statements)Note Purchase Documents delivered on the Closing Date;
(vii) an officer’s certificate (A) either (1) attaching a Canadian Security Confirmation duly executed by certified copy of each Canadian Loan Credit Party;
’s Organizational Documents or (viii2) certifying that no changes have been made to the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
copies delivered under the Existing Credit Agreement, (ixB) such certificates of attaching resolutions or other actionauthorizing the Transaction, each, in form and substance satisfactory to the Administrative Agent, and (C) attaching incumbency certificates and/or other certificates of Responsible Officers of each Loan Credit Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Credit Documents to which such Loan Credit Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each Borrower and each Guarantor Credit Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of incorporation or organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiix) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPBlank Rome, counsel to the Loan Credit Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Required Lenders may reasonably request;
(xivx) a favorable opinion of (i) each local counsel to the Loan Parties in Canada Credit Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xvxi) a favorable opinion of local counsel to the Loan Parties Audited Financial Statements, in Luxembourg addressed form and substance reasonably satisfactory to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2006, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) all materials and information provided to the Lenders by the Credit Parties in connection with the Transaction was, at the time provided, and continues to be complete and correct in all material respects as of the Closing Date; and (D) either (1) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Credit Party of the Transaction and the execution, delivery and performance by such Credit Party and the validity against such Credit Party of the Credit Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (2) stating that no such consents, licenses or approvals are so required;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiii) evidence that all insurance required to be maintained pursuant to the Loan Credit Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an a mortgagee, additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Credit Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and paid (iii) all mortgage tax and related fees required to which may be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;proceeds of Revolving Credit Loans received on such date).
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to a first amendment to, and reaffirmations of Mortgagesaffirmation of, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, Pledge Agreement duly executed by each Borrower and each GuarantorLoan Party therein, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, with certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(Biv) a first amendment to, and affirmation of, the Security Agreement duly executed by each Loan Party, together with
(A) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement,
(B) completed requests for information, dated on or before the Canadian Debentures and date of the Canadian Debenture Pledge Agreementsinitial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name any Loan Party as debtor, together with copies of such other financing statements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(D) the Depository Bank Agreements, duly executed by the appropriate parties, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(viiv) vault cash custody arrangements shall be satisfactory in all respects to the Administrative Agent. Except as otherwise agreed to by the Administrative Agent, (i) the Vault Cash Agreement shall be in full force and effect and shall not have been amended or modified (nor shall any condition thereof have been waived by the Borrower) and (ii) no “Automatic Event of Default” or “Notice Event of Default” (each as defined in the Vault Cash Agreement) shall have occurred or be continuing under the Vault Cash Agreement and no event or condition shall exist thereunder that with notice or passage of time, or both, would permit a Canadian Security Confirmation duly executed by each Canadian Loan PartyVault Cash Provider to terminate the Vault Cash Agreement or retrieve cash from ATMs;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Senior Finance Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of Holdings, the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit E-1 and such other matters concerning the Loan Parties and the Loan Senior Finance Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Senior Finance Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
; and (xxC) a certificate of a Financial Officer calculation of the US Borrower attesting to the Solvency Senior Leverage Ratio as of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery last day of the Loan Documents and all Credit Extensions fiscal quarter of the Borrower most recently ended prior to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Senior Finance Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxii) [Reserved]a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended June 30, 2006, signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(xxvxiii) evidence that the Canadian Borrower Existing Credit Agreement has complied been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before November 30, 2006. Without limiting the generality of the Borrowers and provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Global Cash Access Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the completed Perfection Certificate and the Guaranty;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Securities referred to therein (if such Pledged Securities are certificated) accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Intercompany Notes indorsed in blankblank and issuer acknowledges if otherwise,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security ActUnited States Patent and Trademark Office and United States Copyright Office, federal and state tax and bankruptcy judgment lien searches, in and bankruptcy searches or equivalent reports or searches, each case, dated as of a recent date with respect to the Borrower and each other listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Closing DateAdministrative Agent reasonably deems necessary or appropriate, accompanied by evidence reasonably satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 7.01, or otherwise acceptable to the Administrative Agent, or have been or contemporaneously will be released or terminated or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements); provided that delivery of the items described in the foregoing clauses (iii)(D) through (E) shall be subject to the first paragraph of Section 4.02 and subject to Section 6.20;
(viiiv) a Canadian [reserved];
(v) subject to the first paragraph of Section 4.02, an intellectual property security agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Confirmation Agreement”), duly executed by each Canadian Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could would not reasonably be expected to have a Material Adverse Effect;
Effect (xi) it being understood that certificates of good standing shall only be delivered with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles jurisdiction of incorporation or articles of associationorganization, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaireParty), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substantive reasonably acceptable to customary matters concerning the Loan Parties Administrative Agent and the Loan Documents as the Required Lenders may reasonably requestits counsel;
(xivix) a favorable opinion of (ia) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, local counsel to the Loan Parties in Canada addressed to the Administrative Agent Alabama and each LenderMississippi, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (iib) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in British ColumbiaNorth Carolina, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg each case addressed to the Administrative Agent and each Lenderthe Secured Parties, as to customary matters concerning the Loan Parties in form and the Loan Documents as the Administrative Agent may substantive reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed acceptable to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestits counsel;
(xviix) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request[Intentionally omitted];
(xviiixi) a certificate of a Responsible Officer of each Loan Party either attaching copies of (A) certifying that all consents, licenses and approvals (other than routine change of ownership filings and other routine healthcare filings) required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a partyparty have been obtained, and certifying that such consents, licenses and approvals are shall be in full force and effect, in each case except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that that, subject to the proviso in the first paragraph of Section 4.02, the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectcondition set forth under Section 4.01(e) is met;
(xxxiii) a certificate substantially in the form of a Financial Officer of the US Borrower Exhibit J attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, its Subsidiaries before and immediately after giving effect to the execution and delivery of Transaction, from the Loan Documents and all Credit Extensions to be made on the Closing DateBorrower’s chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained (including, without limitation, flood insurance for any Mortgaged Property) and is in effect, together with the certificates of insuranceinsurance and endorsements, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender lenders loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxv) [Reserved];
(xxvxvi) evidence that the Canadian Borrower Existing Credit Agreement has complied been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuer or the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees and expenses (including reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel for the Arrangers and the Administrative Agent) required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) After giving effect to the Transaction, the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (i) the Loans and other Credit Extensions, (ii) the Senior Notes, and (iii) all mortgage tax other Indebtedness listed on Schedule 7.02.
(d) The First Merger shall be consummated pursuant to the Merger Agreement substantially concurrently with the Closing Date, and the Administrative Agent shall have received, or shall receive concurrently, certified copies of a certificate of merger or other confirmation satisfactory to the Arrangers of the consummation of the First Merger from the Secretary of State of the State of Delaware.
(e) (i) Except for the distribution of the Long-Term Care Business and the Girling New York Business as contemplated by Section 7.12 of the Merger Agreement or as set forth on Schedule 4.9(a) of the Merger Agreement, since December 31, 2012, there shall not have occurred and be continuing an Acquired Business Material Adverse Effect, and (ii) there shall not have occurred and be continuing an Acquired Business Material Adverse Effect since August 31, 2013.
(f) The Administrative Agent shall have received (a) audited consolidated balance sheets of the Borrower and ▇▇▇▇▇▇ Healthcare Holdings, Inc., respectively, and the related statements of income, changes in equity and cash flows of the Borrower and ▇▇▇▇▇▇ Healthcare Holdings, Inc., respectively, for the three most recently completed fiscal years ended at least 90 days before the Closing Date and (b) unaudited consolidated balance sheets and related fees required statements of income and cash flows of the Borrower and ▇▇▇▇▇▇ Healthcare Holdings, Inc., respectively, for each subsequent fiscal quarter after December 31, 2012 ended at least 45 days before the Closing Date.
(g) On the Closing Date and immediately prior to be paid giving effect to the First Merger, the representations and warranties with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges Acquired Business and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which Subsidiaries shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent required by the condition set forth in Section 8.2(a) of the Merger Agreement. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that such representations and warranties specifically refer to an earlier date, in which case they has signed this Agreement shall be true and correct in all material respects (except for such representations and warranties that deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since Lender unless the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Administrative Agent shall have been paid in full (or will be paid in full substantially concurrently with received notice from such Lender prior to the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations executed counterparts of Mortgagesthe Security Agreement, duly executed by the applicable Loan Party and the Administrative Agent and otherwise sufficient in form and substance reasonably satisfactory number for distribution to the Administrative Agent, amending such terms each Lender and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorBorrower, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement,
(B) completed requests for information, dated on or before the Canadian Debentures and date of the Canadian Debenture Pledge Agreementsinitial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name the Borrower as debtor, together with copies of such other financing statements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(ED) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) a Canadian Security Confirmation deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the form of Exhibit H (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the Mortgaged Property (together with the Assignments of Leases and Rents referred to therein, the “Mortgage”), duly executed by each Canadian the Borrower, together with:
(A) evidence that counterparts of the Mortgage have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and coverage in an amount equal to the original principal amount of the Term Loan Party(i.e., $6,000,000), issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the initial Credit Extension, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Mortgage,
(E) an appraisal of the Mortgaged Property, which appraisal shall comply with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, which appraisal shall be from a Person acceptable to the Administrative Agent,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken; and
(I) an environmental assessment report from an environmental consulting firm, and in form and substance, acceptable to the Administrative Agent;
(viiiv) an intellectual property security agreement, in substantially the Luxembourg form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Confirmation Agreement”), duly executed by each Luxembourg Loan Partythe Borrower, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction the State of organization Delaware, the Commonwealth of Massachusetts, the State of Maine and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Procter LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties Borrower and the Loan Documents as the Required Lenders may reasonably request;
(xivix) a favorable opinion of (i) local ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Maine real estate counsel to the Loan Parties in Canada Borrower, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties Borrower and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiix) a certificate of a Responsible Officer of each Loan Party either attaching copies of all the Borrower stating that no consents, licenses and or approvals are required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixxi) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxii) a certificate of a Financial Officer of the US Borrower certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery as of the Loan Documents and all Credit Extensions to be made on the Closing Date, from its chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties Borrower and its Subsidiaries that constitute constitutes Collateral;
(xxivxiv) [Reserved];
(xxv) evidence evidence, including, without limitation, payoff letters and UCC termination statements, that the Canadian Borrower has complied Borrower’s financing arrangements with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies Silicon Valley Bank have been, or concurrently with respect to the Mortgages in form Closing Date are being, terminated and substance satisfactory to all Liens securing obligations under such financing arrangements have been, or concurrently with the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender Agent reasonably may require.
(b) Each Lender The Administrative Agent shall have receivedreceived all requested due diligence materials.
(c) The Administrative Agent shall be satisfied that no adverse Change in Law affecting the Borrower, at least five the Administrative Agent or the Lenders shall have occurred that (5i) days would adversely affect the ability of the Borrower to conduct their business or any business substantially related to or incidental thereto in substantially the same manner as they have done so prior to the date hereof, or (ii) in the reasonable opinion of the Administrative Agent or any Lender would make it illegal for the Administrative Agent or any such Lender to make Loans or to participate in the issuance, extension or renewal of Letters of Credit or in the reasonable opinion of the L/C Issuer would make it illegal for the L/C Issuer to issue, extend or renew such Letters of Credit.
(d) On or before the Closing Date, the Borrower shall have paid (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent (including, without limitation, all appraisal fees and the Joint Lead Arrangers on or before the Closing Date shall have been paidfield exam fees), (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Athenahealth Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of a date on or after the date of this Agreement but on or before the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateDate or, in all cases, unless specified otherwise below) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to a Pledge Agreement and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the a Security Agreement, in substantially the form of Exhibit F and Exhibit G respectively (together with each other pledge agreement and security agreement and pledge agreement supplement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Pledge Agreement” and “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements, Personal Property Security Act financing statements duly filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the Borrower and each other jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlord’s and bailees’ waiver and consent agreements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor the Guarantors is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization California, Ohio and each any other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇H▇▇▇▇▇ & E▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivvii) a favorable opinion of (i) local in-house counsel to the Loan Parties in Canada Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xvviii) a favorable opinion analysis of L▇▇▇ & Staehelin, local counsel to the Loan Parties Administrative Agent in Luxembourg Switzerland, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Parties and the Loan Documents L▇▇ Research International SARL as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower and dated as of the Closing Date certifying that (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that subject to the Stock Option Accounting Restatement, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) subject to the Stock Option Accounting Restatement, a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(xxxi) a certificate of a Financial Officer business plan and budget of the US Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for the first year following the Closing Date;
(xii) certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution and delivery Acquisition, from the chief financial officer or treasurer of the Loan Documents and all Credit Extensions to be made on the Closing DateBorrower;
(xxixiii) an environmental assessment report dated as of a date on or after January 1, 2006 within the Audited Financial Statements from an environmental consulting firm acceptable to the Lenders, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any manufacturing facilities of any Loan Party, and the Unaudited Quarterly Financial StatementsLenders shall be satisfied with the nature and amount of any such matters and with the Borrower’s plans with respect thereto;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxv) [Reserved]a duly completed pro forma Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended September 23, 2007, signed by chief executive officer, chief financial officer, treasurer or controller of the Borrower, showing the combined financial results of the Borrower and its Subsidiaries (including SEZ Holding AG) on a pro forma basis as if the Acquisition had occurred on or before September 23, 2007;
(xxvxvi) a duly completed pro forma Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended December 23, 2007, signed by chief executive officer, chief financial officer, treasurer or controller of the Borrower, showing the combined financial results of the Borrower and its Subsidiaries (but not including SEZ Holding AG);
(xvii) evidence that the Canadian Borrower Existing Credit Agreement has complied been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender Agent or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The Closing Date shall have occurred on or before March 31, 2008.
(e) The representations and warranties Lenders shall have completed a due diligence investigation of the Borrowers Borrower, SEZ Holding AG and their respective Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of the Borrower, SEZ Holding AG and their respective Subsidiaries and shall have received such financial, business and other information regarding each other Loan Party contained in Article V or any other Loan Document are true of the foregoing Persons and businesses as they shall have requested; all of the information made available to the Administrative Agent prior to February 11, 2008 shall be complete and correct in all material respects respects; and no changes or developments shall have occurred, and no new or additional information shall have been received or discovered by the Administrative Agent or the Lenders regarding the Borrower, SEZ Holding AG and their respective Subsidiaries or the Acquisition after February 11, 2008 that (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respectsA) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregateaggregate could reasonably be expected to have a Material Adverse Effect or (B) purports to adversely affect the Facilities or any other aspect of the Acquisition, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe (i) that, following the consummation of the Acquisition, the Borrower and its Subsidiaries would not have good and marketable title to all material assets of SEZ Holding AG or (ii) that the Acquisition will have a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) . Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid in full (or will be paid in full substantially concurrently with received notice from such Lender prior to the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Lam Research Corp)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement Agreement, the Guaranty and the GuarantyIntercreditor Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowers;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G (iv) amendments as it may be amended, amended and restated, supplemented or otherwise modified from time to and reaffirmations of Mortgagestime, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower Loan Party, and a pledge agreement, in substantially the form of Exhibit H (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Pledge Agreement”), duly executed by each GuarantorLoan Party thereto, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Pledged Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements Financing Statements (or other filings the Canadian equivalent) in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures Agreement and the Canadian Debenture Pledge AgreementsAgreement,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy completed lien searches, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in each case, dated as of a recent date with respect the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) the Account Control Agreements and the Securities Account Control Agreement, in each case as referred to in the Security Agreement and duly executed by the appropriate parties,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian the Post-Closing Agreement shall have been duly executed by the Borrowers and delivered to the Administrative Agent;
(v) Intellectual Property Security Confirmation Agreements, duly executed by each Canadian applicable Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease it is qualified as a foreign corporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure other entity to do so could not reasonably be expected to have a Material Adverse Effectbusiness;
(xiviii) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xivix) a favorable an opinion of (i) Kreis, Enderle, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., local counsel to the Loan Parties Cello-Foil Products, Inc. in Canada Michigan, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(xvx) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request[Intentionally Omitted];
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxiii) a certificate business plan and budget of Intermediate Holdings and its Subsidiaries on a Financial Officer consolidated basis, including forecasts prepared by management of Intermediate Holdings, of consolidated balance sheets and statements of income or operations and cash flows of Intermediate Holdings and its Subsidiaries on a monthly basis for the US Borrower first year following the Closing Date;
(xiv) certificates attesting to the Solvency of the US Borrower Intermediate Holdings and the Restricted Subsidiaries, Intermediate Holdings and its Subsidiaries on a consolidated basis, both before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateTransaction, from Intermediate Holdings’ chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, including, without limitation, flood insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxvi) [Reserved];
(xxv) evidence that Administrative Agent and Arrangers shall have received from the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to pro forma consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the Mortgages in form Closing Date, and substance satisfactory to reflecting the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as consummation of the Administrative Agent, any L/C IssuerTransactions, the Swing Line Lender related financings and the other transactions contemplated by the Loan Documents to occur on or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance which pro forma financial statements shall be prepared in accordance with other applicable “know your customer” and anti-money laundering rules and regulations, the Borrower’s historical methodology as posted to the extent requested at least five holders of the Existing Senior Notes on the Borrower’s web-site; and
(5xvii) Business Days prior to such other assurances, certificates or documents as the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Administrative Agent reasonably may require.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);.
(ed) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Transaction shall have been paid in full (or will be paid in full substantially concurrently with consummated pursuant to the closing terms of this Agreement, the Revolving Credit Agreement as of and the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingSenior Notes Indenture.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Parent Guaranty and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agentthereby, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) with respect to each Luxembourg Share Pledge Agreement, a copy of the shareholders’ register of the relevant Luxembourg Loan Party whose shares are pledged, evidencing the registration of the pledge, within 1 Business Day after the Closing Date;
(D) with respect to each Luxembourg Account Pledge Agreement, a copy of the notice of pledge sent to the relevant account bank in Luxembourg within 5 Business Days after the Closing Date and the acknowledgement and waiver of pre-existing rights over the accounts, duly executed by such account bank;
(E) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, searches dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(DF) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(EG) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian Security Confirmation Debenture and Canadian Debenture Pledge Agreement duly executed by each Canadian Loan Party;
(viiiv) the a Luxembourg Security Confirmation Agreement duly executed by each Luxembourg Loan Party;
(ixvi) [reserved];
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiix) with respect to any Luxembourg Loan Party, (i) a certificate certified, true, complete and up-to-date copy of an authorized signatory of extract from the Luxembourg Companies Register pertaining to each such entity dated as of not earlier than one Business Day before the date of this Agreement and certifying (A) that attached thereto is or, if not available, a true and complete copy of the Organization Documents certificate of good standing (includingcertificat de coutume) pertaining to each such entity and dated not earlier than one Business Day before the date of this Agreement, without limitation, (ii) a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (Biii) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, ; and (Evi) that attached thereto is a certified, true, complete and up-to-date copy certificate of an extract from the Luxembourg Companies Register pertaining to authorized signatory of each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) certifying that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effectitem (xvi) has been complied with;
(xiiix) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivxi) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request request, and (ii) local counsel Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and title of the Loan Documents real property intended to be subject to the fixed charges contemplated by the Canadian Debentures as the Administrative Agent Required Lenders may reasonably request;
(xvxii) a favorable an opinion of local NautaDutilh Avocats Luxembourg, as Luxembourg counsel to the Loan Parties in Luxembourg Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning (i) the capacity of the Luxembourg Loan Parties and with respect to the Loan Documents they are entering into, (ii) enforceability of the Loan Documents governed by Luxembourg law that they are entering into, (iii) lien creation and perfection and (iv) other customary matters as the Administrative Agent may reasonably request;
(xvixiii) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request[reserved];
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixiv) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party or Loan Parties of the Transaction and the execution, delivery and performance by such Loan Party or Loan Parties and the validity against such Loan Party or Loan Parties of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxvi) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Documents, any Credit Extensions Extension to be made on the Closing DateDate and the consummation of the Transaction, from the chief financial officer of the US Borrower or of the General Partner acting on its behalf;
(xxixvii) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxiixviii) an amendment to the extent not previously provided or made available Parent Credit Agreement and releases of the Loan Parties from all loan documents relating thereto and Liens granted by any Loan Party in connection therewith, in each case, in form and substance reasonably satisfactory to the Administrative Agent Agent;
(including pursuant to the Existing Credit Agreement), the xix) The Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixx) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvxxi) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) received all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations11.19, to the extent requested at least five (5) Business Days prior to the Closing Date;
(c) The Lenders shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and (ii) with results, satisfactory to the extent requested by Lenders, and shall have been given such Lenderaccess to the management, a Beneficial Ownership Certification in relation to records, books of account, contracts and properties of the Borrowers and their respective Subsidiaries and shall have received such financial, business and other information regarding each Borrowerof the foregoing Persons and businesses as they shall have requested;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(de) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(ef) The representations Loan Parties shall have provided true, correct, and warranties complete copies of all Material Contracts to the Borrowers Administrative Agent and each other Loan Party contained the Lenders to the extent not previously provided (and the Administrative Agent and the Lenders agree that any Material Contracts filed with the SEC in Article V or any other Loan Document are true and correct connection with the Transaction shall be deemed delivered);
(g) The Transactions shall have been completed in all material respects (except in accordance with the terms of the Transfer Documents and applicable Law. Without limiting the generality of the provisions of Section 10.03(e), for such representations and warranties purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (USD Partners LP)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (subject to Section 6.21) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G hereto (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) copies of proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion insurance required by the terms of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyAgreement, and
(ED) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security Agreement has been taken (including including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust, in a Canadian form satisfactory to the Administrative Agent and covering the properties listed on Schedule 4.01(a)(iv) (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid,
(B) evidence of the insurance required by the terms of the Mortgages, and
(C) evidence that all other action that the Administrative Agent may deem necessary in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(v) an intellectual property security agreement, in substantially the form of Exhibit H hereto (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Confirmation Agreement”), duly executed by each Canadian Loan Party, together with evidence that all action that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken;
(viiivi) a pledge agreement, in substantially the Luxembourg Security Confirmation form of Exhibit J hereto (the “German Law Pledge Agreement”), duly executed by each Luxembourg the applicable Loan Party, together with evidence that all action that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created thereunder has been taken;
(ixvii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor the Guarantors is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiix) a favorable opinion of (a) J▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning in substantially the Loan Parties form of Exhibit I and the Loan Documents as the Required Lenders may reasonably request;
(xivb) a favorable opinion of (i) local other special counsel to the Loan Parties in Canada Tennessee, South Dakota, Minnesota and Nevada, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as that the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestdeem necessary;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxi) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ;
(Bxii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
; (xxB) a certificate that the (1) Total Leverage Ratio is not greater than 5.60:1.0 and (2) ratio of a Financial Officer all Credit Extensions to Consolidated EBITDA for the period of the US Borrower attesting four Fiscal Quarters most recently ended is not greater than 2.80:1.0, in each case under clauses (1) and (2), as calculated as of the Closing Date on a pro-forma basis giving effect to the Transaction with supporting calculations in reasonable detail; (C) that the pro forma financial statements delivered pursuant to clause (xii)(D) below and the forecasts delivered pursuant to clause (xii)(E) below were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the then existing conditions; and (D) as to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateTransaction;
(xxixiii) such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lenders shall have requested, including, without limitation, (A) information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans and Multiemployer Plans, collective bargaining agreements and other arrangements with employees, (B) the Audited Financial Statements Statements, (C) interim financial statements dated the end of the most recent Fiscal Quarter for which financial statements are available (or, in the event the Lenders’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the initial Credit Extension), (D) pro forma financial statements as to Holdings and its Subsidiaries giving effect to the Transaction for the most recently completed fiscal year and the Unaudited Quarterly Financial Statementsperiod commencing with the end of the most recently completed fiscal year and ending with the most recently completed fiscal month and (E) forecasts prepared by management of the Borrower, in form and substance satisfactory to the Lead Arranger and the Lenders, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the initial Credit Extension and on an annual basis for each year thereafter until the Maturity Date of the Term Facility;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, and endorsements naming the Administrative Agent, on behalf of and for the Secured Partiesbenefit of the Lenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood such insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxivxv) [Reserved]certified copies of a certificate of merger or other confirmation satisfactory to the Administrative Agent of the consummation of the Merger from the Secretary of States of Delaware and Minnesota;
(xxvxvi) evidence that certified copies of each of the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to Related Documents, duly executed by the Mortgages parties thereto and in form and substance satisfactory to the Administrative Agent, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request;
(xxviixvii) a Loan Notice for a Borrowingof Borrowing and, if applicable, Notice of Issuance, relating to the initial Credit Extension;
(xviii) evidence that the Existing Credit Agreements have been or concurrently with the Closing Date are terminated and all Liens securing obligations thereunder have been or concurrently with the Closing Date are released; and
(xxviiixix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid.
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect, (ii) all fees required purports to be paid affect the Transaction or any portion thereof or the ability of the Borrower or any other Loan Party to perform their respective obligations under the Lenders on Loan Documents, or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required purports to be paid with respect to affect the Mortgages (legality, validity or enforceability of any amendments Loan Document or supplements thereto) shall have been paid;the consummation of the Transaction.
(d) Unless waived by All governmental authorizations and all third party consents and approvals necessary in connection with the Administrative Agent, the Borrowers Transaction shall have paid all fees, charges and disbursements been obtained (without the imposition of counsel any conditions that are not acceptable to the Administrative Agent (directly Lenders) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any Governmental Authority, and no Law shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Datetransfer or otherwise dispose of, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred create any Lien on, any properties now owned or hereafter acquired by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling any of accounts between the Borrowers and the Administrative Agent);them.
(e) The representations and warranties Merger shall have been consummated strictly in accordance with the terms of the Borrowers Merger Agreement, without any waiver or amendment not consented to by the Lenders of any term, provision or condition set forth therein, and each other Loan Party contained in Article V or any other Loan Document are true and correct in compliance with all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as applicable requirements of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;Law.
(f) There has been no event or circumstance since The Borrower shall have received $165,000,000 in gross proceeds from the date sale of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;Subordinated Notes.
(ig) The Existing Loans and Existing L/C Advances (if any) Reorganization shall have been paid in full (or will be paid in full substantially concurrently consummated. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the closing of conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. (a) The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(ai) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (and, in the case of this Agreement, by each Lender), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:):
(iii) executed counterparts of this Agreement and the Guaranty;
(iiiii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note, with such requests provided to the Company at least two Business Days prior to the Closing Date;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Securities (if any) referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Intercompany Notes indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem are necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy judgment lien searches, in bankruptcy and pending lawsuit searches or equivalent reports or searches, each case, dated as of a recent date with respect listing all effective financing statements, lien notices or comparable documents that name any Loan Party or Qualified Subsidiary as debtor and that are filed in those state and county jurisdictions in which any Loan Party or Qualified Subsidiary is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted by Section 7.01 or any other Liens acceptable to the Borrower and each other Loan Party as of the Closing Date,Administrative Agent), and
(D) evidence a fully executed Perfection Certificate substantially in the form of Exhibit I
(v) a Solvency Certificate in the form of Exhibit K shall have been executed and delivered by the chief financial officer of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)Borrower;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor its Subsidiaries is validly existing, in good standing and qualified to engage in business in its the jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇ Simpson, Thacher & ▇▇▇▇▇▇▇, LLP, ▇ LLP counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivix) a favorable opinion of (i) ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, local counsel to the Loan Parties in Canada Texas, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvx) a favorable opinion of local counsel to the Loan Parties financial statements referenced in Luxembourg addressed to the Administrative Agent Section 5.05(a) and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request(d);
(xvixi) a favorable opinion of local counsel to the Intercreditor Agreement, fully executed by the trustee for the Senior Secured Notes, the Administrative Agent, and acknowledged by the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;Parties; and
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with Borrower as to the execution, delivery and performance by such Loan Party and the validity against such Loan Party satisfaction of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified set forth in Sections 4.02(a4.01(e), (f), (g) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreementj), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paidpaid to the extent then invoiced, with such invoices provided to the Company at least two Business Days prior to the Closing Date and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges applicable expenses (including the reasonable and invoiced fees and disbursements of counsel (with such invoices provided to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced Company at least one (1) two Business Day Days prior to the Closing Date)) that are due pursuant to Section 11.04(a).
(d) The Merger shall have been, plus such additional amounts of such feesor shall simultaneously be, charges consummated pursuant to the Purchase Agreement, and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate purchase price thereof shall not thereafter preclude a final settling be changed without the Lead Arrangers’ prior consent and no other provision thereof shall have been amended or waived or consented to in any manner which is materially adverse to the Lenders without the prior written consent of accounts between the Borrowers and the Administrative Agent);Lead Arrangers.
(e) Since December 31, 2009, there shall have been no change, development or event that, individually or in the aggregate, has had or would reasonably be expected to have a Closing Date Material Adverse Change.
(f) The Consolidated Leverage Ratio as of the last day of the most recent fiscal quarter of the Borrower ended not less than 45 days prior to the Closing Date shall not be greater than 5.1:1.0 after giving effect to the consummation of the Transaction.
(g) Immediately after giving effect to the Transaction, neither Holdings nor any of its Subsidiaries has any Indebtedness for borrowed money or preferred stock other than (i) the Senior Secured Notes, (ii) up to $12,000,000 aggregate principal amount of Indebtedness of Qualified Subsidiaries and (iii) Indebtedness in respect of the Revolving Credit Loans not in excess of $5,000,000.
(h) The Borrower shall have received $250,000,000 in gross proceeds from the sale of the Senior Secured Notes; Holdings shall have received cash proceeds equal to at least 40% of the total pro forma consolidated debt (based on the principal amount thereof in the case of debt issued at a discount to its initial principal amount) and equity capitalization of the Borrower and its Subsidiaries on the Closing Date after giving effect to the Transaction from a capital contribution to its equity and Holdings shall have contributed such cash proceeds to the capital of the Borrower.
(i) The Lenders and the Administrative Agent shall have received the information required under Section 11.18 not less than five (5) Business Days prior to the Closing Date.
(j) (i) The representations and warranties made by Borrower in the Purchase Agreement as are material to the interests of the Borrowers Lenders, but only to the extent that Holdings or MergerCo has the right to terminate its obligations under the Purchase Agreement as a result of a breach of such representations in the Purchase Agreement shall be true and each other Loan Party correct and (ii) the representations contained in Article V or any other Sections 5.01, 5.02, 5.03, 5.04, 5.13, 5.15(a) (with respect to the Act) 5.17, 5.19 and 5.21 (with the representations under Section 5.01(b)(ii), 5.02, 5.03 and 5.04 limited to representations in such sections with respect to the Loan Document are Documents) shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date Closing Date with the same effect as though made on and as of the Closing Datesuch date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;.
(i) The Existing Loans and Existing L/C Advances (if any) Administrative Agent shall have been paid in full (or will received a customary “pay-off” letter and UCC-3 termination statements with respect to all Liens to be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on terminated upon the Closing Date) , and (ii) such other customary releases with respect to Liens to be terminated at the Closing Date as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C IssuerIssuers, the Swing Line Lender or any Lender the Required Lenders reasonably may requirerequire (including, without limitation, each of the documents, instruments and agreements listed in the List of Closing Documents attached hereto as Schedule 4.01).
(b) Each Lender The Administrative Agent shall have receivedreceived from the Company, at least five (5) days prior to the Closing Datein immediately available funds, (i) all information requested a commitment fee payable to each Lender party to the Existing Credit Agreement as of the date hereof in an amount equal to 0.100% of the amount, if any, by it which such Lender’s Commitment is increased over such Lender’s “Commitment” under the Existing Credit Agreement pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paidthis Agreement, (ii) all an amendment fee payable to each Lender party to the Existing Credit Agreement in an amount equal to 0.030% of the amount of such Lender’s “Commitment” under the Existing Credit Agreement, (iii) the fees required to be paid to under the Lenders on or before the Closing Date shall have been paidFee Letters, and (iiiiv) all mortgage tax accrued and related unpaid “Facility Fees” under the Existing Credit Agreement (regardless of whether such “Facility Fees” are then due and payable), all of which aforementioned fees required to shall be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;fully earned and non-refundable when due and payable.
(dc) Unless waived by the Administrative AgentAgent or the Arrangers, respectively, the Borrowers Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by and the Administrative Agent) consistent with Section 11.04(a) Arrangers, respectively, to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Collateral Documents and each of the other Loan Documents sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,;
(Civ) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy judgment lien searches, in or equivalent reports or searches, each case, dated as of a recent date listing all effective financing statements, lien notices or comparable documents (together with respect to copies of such financing statements and documents) that name the Borrower as debtor and each that are filed in those state and county jurisdictions in which the Borrower is organized or maintains its principal place of business and such other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement searches that the Administrative Agent may deem reasonably deems necessary or reasonably desirable in order appropriate, none of which encumber the Collateral covered or intended to perfect be covered by the Liens created thereby, and
Collateral Documents (E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementsthan Permitted Liens);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyDocuments;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other the jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectit is organized;
(xivii) with respect certificates attesting to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as the Solvency of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (includingBorrower from its chief financial officer, without limitation, a copy of the up-to-date articles of incorporation treasurer or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedingsassistant treasurer;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, New York counsel to the Loan PartiesBorrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, as in form and substance reasonably acceptable to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of current Ratings and (C) the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectCertification Amount;
(xxx) a certificate of a Financial Responsible Officer of the US Borrower attesting to either (A) attaching copies of all consents, licenses and approvals required in connection with the Solvency consummation by the Borrower of the US transaction and the execution, delivery and performance by the Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to validity against the execution and delivery Borrower of the Loan Documents to which it is a party, and all Credit Extensions to such consents, licenses and approvals shall be made on the Closing Datein full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xxixi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender lenders’ loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties Borrower that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixii) such other assurancesevidence that (A) the Existing DP&L PNC Credit Facility and the obligations thereunder have been or concurrently with the Closing Date are being renewed, certificates, documents, consents or opinions as extended and replaced pursuant to the Administrative Agent, any L/C Issuer, New DP&L PNC Credit Facility and (B) the Swing Line Lender or any Lender reasonably may requireconditions precedent to the effectiveness of the New DP&L PNC Credit Facility have been satisfied and all documentation thereof and required thereunder has been executed.
(b) Each Lender Any fees required to be paid on or before the Closing Date shall have received, been paid to the extent invoiced at least five (5) days two Business Days prior to the Closing Date, .
(ic) Receipt by the Administrative Agent (on behalf of itself or any Lender) of all documentation and other information requested required by it pursuant to Section 11.19 and for purposes of compliance with other regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, to regulations requested by the extent requested Administrative Agent at least five ten (510) Business Days days prior to the Closing Date, and (ii) to including the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;USA Patriot Act .
(d) Unless waived by the Administrative AgentArrangers, and subject to the provisions of the Fee Letter and the Engagement Letter, the Borrowers Borrower shall have paid all reasonable fees, charges and disbursements of counsel due to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) two Business Day Days prior to the Closing DateDate and required to be paid pursuant to the Fee Letters or the Engagement Letters. Without limiting the generality of the provisions of the last paragraph of Section 9.03, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 4.01, charges and disbursements as each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through the closing proceedings (provided that such estimate shall not thereafter preclude or acceptable or satisfactory to a final settling of accounts between the Borrowers and Lender unless the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for Agent shall have received notice from such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the date hereof (in the case of this Agreement) or the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyNewpark;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations executed counterparts of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorBorrower, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Borrower as debtor, together with copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each such other Loan Party as of the Closing Datefinancing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebythereby (unless the Security Agreement permits such action to be taken after the Closing Date),
(E) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement and duly executed by the appropriate parties, and
(EF) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, lien releases and UCC-3 termination statements and Personal Property but excluding such action which the Security Act discharge verification statements);Agreement permits to be taken after the Closing Date.
(viiiv) a Canadian IP Security Confirmation Agreement Supplements, duly executed by each Canadian Loan Partyrelevant Borrower, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement in intellectual property has been taken;
(viiiv) executed counterparts of mortgages covering the Luxembourg Security Confirmation duly executed by each Luxembourg Loan PartyReal Estate listed on Schedule 4.01, together with the Related Real Estate Documents for all such Real Estate;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each such Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiviii) with respect to any Luxembourg Loan Party, a certificate favorable opinions of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (Aa) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Esq., Newpark’s General Counsel as to corporate matters in respect of the Borrowers other than Dura-Base, (b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Loan PartiesBorrowers, and (c) local Nevada counsel to Dura-Base as to corporate matters in respect of Dura-Base, each addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties Borrowers and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower Newpark certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectEffect and (C) that Availability as of the Closing Date is no less than $37,500,000 and containing the calculation of such Availability in reasonable detail and satisfactory to the Administrative Agent.
(x) financial projections of Newpark and its Subsidiaries on a consolidated basis prepared by management of Newpark, including consolidated balance sheets and statements of income or operations and cash flows of Newpark and its Subsidiaries on an annual basis for each of Newpark’s fiscal years 2016 through 2019, in form and substance reasonably satisfactory to the Administrative Agent, along with unaudited, consolidated interim financial statements for Newpark as of a date not more than 30 days prior to the Closing Date;
(xxxi) a certificate of a Financial Officer of the US Borrower certificates attesting to the Solvency of the US each Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution entering into of this Agreement and delivery any repayment or incurrence of the Loan Documents and all Credit Extensions to be made Indebtedness on the Closing DateDate and the payment of fees and expenses in connection therewith, from the chief financial officer of Newpark;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiii) such other assurances, certificates, documents, consents consents, approvals or opinions as the Administrative Agent, any the L/C IssuerIssuers, the Swing Line Lender Lenders or any Lender reasonably may require.
(b) Each Lender shall have received, require and are identified at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) three Business Days prior to the Closing Datedate that all other conditions set forth in this Section 4.01, and except the appraisal referred to in clause (iie) to the extent requested by such Lenderbelow, a Beneficial Ownership Certification in relation to each Borrower;shall have been satisfied.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Newpark shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Newpark and the Administrative Agent);.
(d) All Loans outstanding under the Prior Credit Agreement, if any, shall have been repaid, and all accrued but unpaid interest, commitment fees, and other amounts outstanding thereunder shall have been paid in full.
(e) The representations and warranties Administrative Agent’s receipt of a satisfactory appraisal of the Borrowers and each Borrowers’ Inventory; provided, however, that if all conditions to closing other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that than the foregoing condition have a materiality or Material Adverse Effect qualificationbeen satisfied, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as delivery of such earlier date;appraisal will instead be a post-closing covenant.
(f) There has been no event The Administrative Agent’s satisfactory completion of its due diligence, including such collateral reviews, field examinations, audits, appraisals, assessments and other reviews by the Administrative Agent or circumstance since third parties, as the date Administrative Agent deems appropriate and as are customary for similar transactions.
(g) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Borrower, and the validity against such Borrower, of the Audited Financial Statements Loan Documents to which it is a party shall be in full force and effect.
(h) The Administrative Agent shall have received from each Borrower all documentation (including background checks) and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has had signed this Agreement shall be deemed to have consented to, approved or could accepted or to be reasonably expected satisfied with, each document or other matter required thereunder to have, either individually be consented to or in approved by or acceptable or satisfactory to a Lender unless the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Administrative Agent shall have been paid in full (or will be paid in full substantially concurrently with received notice from such Lender prior to the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Parent Guaranty and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agentthereby, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) with respect to each Luxembourg Share Pledge Agreement, a copy of the shareholders’ register of the relevant Luxembourg Loan Party whose shares are pledged, evidencing the registration of the pledge, within 1 Business Day after the Closing Date;
(D) with respect to each Luxembourg Account Pledge Agreement, a copy of the notice of pledge sent to the relevant account bank in Luxembourg within 5 Business Days after the Closing Date and the acknowledgement and waiver of pre-existing rights over the accounts, duly executed by such account bank;
(E) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, searches dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(DF) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(EG) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian Security Confirmation Debenture and Canadian Debenture Pledge Agreement duly executed by each Canadian Loan Party;
(viiiv) the a Luxembourg Security Confirmation Agreement duly executed by each Luxembourg Loan Party;
(ixvi) [reserved];
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiix) with respect to any Luxembourg Loan Party, (i) a certificate certified, true, complete and up-to-date copy of an authorized signatory of extract from the Luxembourg Companies Register pertaining to each such entity dated as of not earlier than one Business Day before the date of this Agreement and certifying (A) that attached thereto is or, if not available, a true and complete copy of the Organization Documents certificate of good standing (includingcertificat de coutume) pertaining to each such entity and dated not earlier than one Business Day before the date of this Agreement, without limitation, (ii) a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (Biii) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, ; and (Evi) that attached thereto is a certified, true, complete and up-to-date copy certificate of an extract from the Luxembourg Companies Register pertaining to authorized signatory of each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) certifying that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effectitem (xvi) has been complied with;
(xiiix) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivxi) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request request, and (ii) local counsel Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and title of the Loan Documents real property intended to be subject to the fixed charges contemplated by the Canadian Debentures as the Administrative Agent Required Lenders may reasonably request;
(xvxii) a favorable an opinion of local NautaDutilh Avocats Luxembourg, as Luxembourg counsel to the Loan Parties in Luxembourg Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning (i) the capacity of the Luxembourg Loan Parties and with respect to the Loan Documents they are entering into, (ii) enforceability of the Loan Documents governed by Luxembourg Law that they are entering into, (iii) lien creation and perfection and (iv) other customary matters as the Administrative Agent may reasonably request;
(xvixiii) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request[reserved];
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixiv) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party or Loan Parties of the Transaction and the execution, delivery and performance by such Loan Party or Loan Parties and the validity against such Loan Party or Loan Parties of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxvi) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Documents, any Credit Extensions Extension to be made on the Closing DateDate and the consummation of the Transaction, from the chief financial officer of the US Borrower or of the General Partner acting on its behalf;
(xxixvii) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxiixviii) an amendment to the extent not previously provided or made available Parent Credit Agreement and releases of the Loan Parties from all loan documents relating thereto and Liens granted by any Loan Party in connection therewith, in each case, in form and substance reasonably satisfactory to the Administrative Agent Agent;
(including pursuant to the Existing Credit Agreement), the xix) The Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixx) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvxxi) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) received all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations11.19, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations Loan Parties shall have provided true, correct, and warranties complete copies of all Material Contracts to the Borrowers Administrative Agent and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except Lenders to the extent not previously provided (and the Administrative Agent and the Lenders agree that such representations and warranties specifically refer to an earlier date, any Material Contracts filed with the SEC in which case they connection with the Transaction shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier datedeemed delivered);
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Transactions shall have been paid completed in full (or will be paid all material respects in full substantially concurrently accordance with the closing terms of the Transfer Documents and applicable Law. Without limiting the generality of the provisions of Section 10.03(e), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (USD Partners LP)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Amendment and Restatement Closing Date is subject to satisfaction (subject to Section 6.15(b)) or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Existing Guaranty Supplement in substantially the form of Exhibit F hereto and the GuarantyIntercreditor Agreement in substantially the form of Exhibit M hereto, sufficient in number for distribution to each Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote (provided that any Lender holding a Note issued pursuant to the Existing Credit Agreement that requests a new Note shall have returned its existing Note to the Administrative Agent);
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Existing Security AgreementAgreement Supplement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, certificates (if any, ) representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank, in each case, to the extent not already in the possession of the Administrative Agent,
(B) copies of proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of in all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the First Lien Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the First Lien Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,and
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of that all other actions, recordings and filings of or with respect to the First Lien Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect and protect the Liens created thereby;
(iv) a security agreement, in substantially the form of Exhibit G-2 hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.11 and 6.15 and evidencing a second priority lien and security interest in the Collateral thereunder, in each case as amended, the “Second Lien Security Agreement”), duly executed by each Loan Party, together with:
(A) copies of proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the second priority liens and security interests created under the Second Lien Security Agreement, covering the Collateral described in the Second Lien Security Agreement, and
(EB) evidence that all other actions, recordings and filings of or with respect to the Second Lien Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby;
(v) the First Lien Mortgages, duly executed by the appropriate Loan Party, together with:
(A) evidence that a counterpart of the Existing Mortgage Supplement has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in the applicable Ohio jurisdiction and that all applicable filing and recording taxes and fees have been paid or otherwise provided for to the satisfaction of the Administrative Agent,
(B) evidence that a counterpart of the New Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in the applicable Indiana jurisdiction and that all applicable filing and recording taxes and fees have been paid, and
(C) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the Orrville, Ohio property and the Noblesville, Indiana property, subject to Liens permitted by Section 7.01, has been taken;
(vi) mortgages, in substantially the form of Exhibit H-3 hereto (with such changes as may be reasonably satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the Borrower’s Orrville, Ohio fertilizer plant and the Borrower’s Noblesville, Indiana plant (together with each other mortgage delivered pursuant to Section 6.11, in each case as amended, the “Second Lien Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that a counterpart of the Second Lien Mortgage covering the Orrville, Ohio property has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in the applicable Ohio jurisdiction and that all applicable filing and recording taxes and fees have been paid or otherwise provided for to the satisfaction of the Administrative Agent,
(B) evidence that a counterpart of the Second Lien Mortgage covering the Noblesville, Indiana property has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in the applicable Indiana jurisdiction and that all applicable filing and recording taxes and fees have been paid, and
(C) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid second and subsisting Lien on the Orrville, Ohio property and the Noblesville, Indiana property, subject to Liens permitted by Section 7.01, has been taken;
(vii) the Existing IPSA Supplement, duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the First Lien Intellectual Property Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Partytaken;
(viii) an intellectual property security agreement, in substantially the Luxembourg form of Exhibit I-2 hereto (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.11 and 6.15, in each case as amended, the “Second Lien Intellectual Property Security Confirmation Agreement”), duly executed by each Luxembourg Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the second priority liens and security interests created under the Second Lien Intellectual Property Security Agreement has been taken;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, existing and in good standing and qualified to engage in business in under its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectincorporation;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable satisfactory opinion of Weil, Gotshal and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, as to customary the matters concerning the Loan Parties set forth in Exhibit J-1 and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvxii) a favorable opinion reasonably satisfactory opinions of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each LenderParties, as to customary the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixiii) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such the Borrower or any other Loan Party and the validity against the Borrower or such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxiv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements July 9, 2004 that has had or could be reasonably expected to have, either individually or in the aggregate, a UPG Material Adverse Effect;
(xxxv) a certificate of a Financial Officer of the US Borrower certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiariesits Subsidiaries taken as a whole, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateUPG Acquisition, from its Chief Financial Officer;
(xxixvi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) satisfactory evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates endorsements of insurance, naming insurance required by the Administrative Agent, on behalf terms of the Secured PartiesSecurity Agreements;
(xvii) a notice of borrowing or notice of letter of credit issuance, as an additional insured or lender loss payeeapplicable, relating to the Credit Extension on the Amendment and Restatement Closing Date; and
(xviii) (A) unaudited consolidated balance sheet and income statement of UPG and its Subsidiaries for any interim monthly periods ended since March 31, 2004 for which such statements are available, and a pro forma balance sheet, income statement and statement of cash flows as to the Borrower and its Subsidiaries as of the end of and for the most recent four fiscal quarter period ended at least 45 days prior to the Amendment and Restatement Closing Date, in each case may beadjusted to give effect to the consummation of the UPG Acquisition as if the UPG Acquisition, under all insurance policies (including flood insurance policiesx) maintained with respect to the assets pro forma balance sheet, had occurred on such date, and properties of the Loan Parties that constitute Collateral;
(xxivy) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages pro forma income statement and pro forma statement of cash flows, had occurred on the first day of such four fiscal quarter period and (B) the forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements for each month ending after the Amendment and Restatement Closing Date through December 31, 2004 and for each year commencing with the first fiscal year following the Amendment and Restatement Closing Date for the term of the Facilities; and
(xix) certified copies of the UPG Acquisition Documents duly executed by the parties thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(bi) Each Lender The UPG Acquisition shall be consummated simultaneously with the Credit Extension on the Amendment and Restatement Closing Date in accordance with the terms of the UPG Merger Agreement, (ii) the final UPG Merger Agreement (including all schedules and exhibits thereto) and other material related documentation shall be reasonably satisfactory to the Bookrunners (it being understood and agreed that the final Merger Agreement dated June 14, 2004 among the Borrower, Saturn MergerCo., Inc. and UPG and the related documentation reviewed by the Bookrunners as of the date thereof are satisfactory), (iii) no provision of such documentation shall have receivedbeen waived, at least five (5) days prior amended, supplemented or otherwise modified in any manner materially adverse to the Lenders without the approval of the Bookrunners and (iv) concurrently with, and in addition to, the Term Borrowings to be made on the Amendment and Restatement Closing Date, the Borrower shall utilize an aggregate amount in (A) cash equity of the Borrower and (B) cash on hand of the Borrower sufficient to consummate the UPG Acquisition.
(c) The Administrative Agent shall (i) all information requested by it be reasonably satisfied that there has been no material adverse change (from the standpoint of the Lenders) in the pro forma capital and ownership structure and the shareholder arrangements of the Borrower and each of the Guarantors since July 9, 2004 (other than as to be effected pursuant to Section 11.19 the UPG Acquisition) or (ii) have approved any such change.
(d) All material governmental, shareholder and for purposes material third party consents and approvals (including, without limitation, ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance, if applicable) necessary in connection with the UPG Acquisition shall have been obtained and shall remain in effect; all applicable waiting periods in connection with the UPG Acquisition shall have expired, without any action being taken by any Governmental Authority that would have the effect of compliance with other applicable “know your customer” and anti-money laundering rules and regulations(i) making the consummation of the UPG Acquisition illegal or (ii) otherwise prohibiting the consummation of the UPG Acquisition.
(e) There shall exist no action, suit, investigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the extent requested at least five knowledge of the Borrower, threatened before any Governmental Authority or arbitrator that could be reasonably be expected to have a UPG Material Adverse Effect.
(5f) Business Days prior All Loans made by the Lenders to the Closing Date, and (ii) to Borrower shall be in full compliance with the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Federal Reserve’s margin regulations.
(ig) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Amendment and Restatement Closing Date shall have been paid, (ii) all including the fees required to be paid and expenses of counsel to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements theretoAdministrative Agent) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:precedent (unless otherwise agreed to in writing by the Administrative Agent in its sole discretion):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, electronic copies or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations executed counterparts of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name acknowledgment copies of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements duly filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of in all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement,
(B) completed requests for information, dated on or before the Canadian Debentures and date of the Canadian Debenture Pledge Agreementsinitial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name any Loan Party as debtor, together with copies of such other financing statements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements statements, and
(D) evidence of the completion of all other actions, recordings and Personal filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby;
(iv) executed counterparts of the Securities Pledge Agreement, duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Collateral accompanied by undated transfer powers executed in blank and instruments evidencing the Pledged Indebtedness accompanied by undated allonges executed in blank,
(B) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Securities Pledge Agreement has been taken;
(v) the Intellectual Property Security Act discharge verification statements)Agreements, duly executed by each Loan Party, together with evidence that all actions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreements has been taken;
(vi) solely to the extent not previously delivered by the Loan Parties in connection with the Existing Credit Agreement, with respect to each fee-owned real property of a Loan Party, (a) a duly executed Mortgage, in form and substance reasonably satisfactory to the Administrative Agent granting the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority Lien in each real property, (b) an amendment to each Mortgage delivered in connection with the Existing Credit Agreement, in form and substance reasonably satisfactory to the Administrative Agent reaffirming to the Administrative Agent, for the benefit of the Secured Parties, that the applicable original Mortgage creates a perfected first-priority Lien in the real property covered by such Mortgage and otherwise amending the Mortgage as the Administrative Agent requires, (c) all Real Estate Support Documents reasonably requested by the Administrative Agent and (d) all opinions, certificates, agreements and documents reasonably requested by the Administrative Agent.
(vii) a Canadian Security Confirmation the Fee Letter, duly executed by each Canadian Loan Partythe Borrower;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xix) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower Loan Party and each Guarantor its Subsidiaries is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiix) a favorable opinion of Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as each in form, scope and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xivxi) a favorable opinion of (i) opinions from those local counsel to the Loan Parties in Canada Parties, listed on Schedule 4.01, addressed to the Administrative Agent and the Lenders, each Lenderin form, as scope and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxiii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) that the Consolidated EBITDA of the Borrower and its Subsidiaries for the Measurement Period most recently ended prior to the Closing Date, calculated on a pro forma basis after giving effect to the Transaction shall be greater than or equal to $30,000,000, together with all detail and supporting information reasonably requested by and satisfactory to the Administrative Agent;
(xxxiv) certificates from a certificate of a Financial Responsible Officer of the US Borrower each Loan Party attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party both before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateTransactions;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the binding certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuer or the Swing Line Lender or any Sweep Plus Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Administrative Agent for itself or on behalf of Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Administrative Agent shall have received, reviewed and be satisfied with the Budget and projections delivered to the Administrative Agent prior to the Closing Date;
(e) The representations capital and warranties ownership structure and the shareholding arrangements of the Borrowers Borrower and its Subsidiaries (and all agreements related thereto), after giving pro forma effect to the Transactions, shall be reasonably satisfactory to the Administrative Agent and the Arranger.
(f) The Loan Parties shall have provided the documentation and other information to the Lenders required pursuant to Section 10.17.
(g) The Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management records, books of account, contract and properties of the Borrower and its Subsidiaries and shall have received such financial, business and other information regarding each other Loan Party contained in Article V or any other Loan Document are true of the foregoing Persons and businesses as they shall have requested. All of the information made available to the Administrative Agent prior to the Closing Date shall be complete and correct in all material respects respects; and no changes or developments shall have occurred, and no new or additional information shall have been received or discovered by the Administrative Agent or the Lenders regarding the Borrower or any of its Subsidiaries or the Transaction after September 12, 2010 that (except for such representations and warranties that A) either individually or in the aggregate could reasonably be expected to have a materiality or Material Adverse Effect qualificationor (B) purports to adversely affect the Facilities or any other aspect of the Transaction, which nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe that the Transaction will have a Material Adverse Effect.
(h) There shall be true and correct in all respects) on and as no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the date Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement, any other Loan Document or the consummation of the Closing DateTransactions, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects or (b) except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to haveDisclosed Litigation, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect;
(i) The Existing Loans , and Existing L/C Advances (if any) there has been no adverse change in the status, or financial effect on any Loan Party or any Subsidiary thereof, of the Disclosed Litigation. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid in full (or will be paid in full substantially concurrently with received notice from such Lender prior to the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Benihana Inc)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agent, the Structuring Advisor and each of the Required Lenders:
(i) executed counterparts of this Agreement and the GuarantyGuaranty Agreement;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a pledge and security agreement, in substantially the form of Exhibit F attached hereto (iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein therein, if any, accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem (acting at the direction of the Structuring Advisor) deems necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Date,such other financing statements, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem Structuring Advisor deems necessary or desirable in order to perfect the Liens as valid, enforceable and non-avoidable first priority Liens created under the Security Agreement has been taken thereby (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian Security Confirmation the Collateral Assignment of Communication Paths duly executed by each Canadian the appropriate Loan PartyParties;
(viiiv) the Luxembourg Security Confirmation Collateral Assignment of Contract Rights duly executed by each Luxembourg the appropriate Loan PartyParties;
(ixvi) such certificates (A) resolutions of resolutions the board of directors or other action, governing body of each Loan Party authorizing the entry of such Loan Party into the Loan Documents and (B) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent Structuring Advisor may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party, in each case reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders);
(xvii) such documents and certifications as the Structuring Advisor and the Administrative Agent (acting at the direction of the Required Lenders) may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and Bilzin ▇▇▇▇▇▇▇ LLP, counsel counsels to the Loan Parties, addressed to the Administrative Agent Agent, the Structuring Advisor and each Lender, as to customary and covering such matters concerning the Loan Parties and the Loan Documents as the Required Lenders Structuring Advisor may reasonably request;
(xivix) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to Intercreditor Agreement, having been duly executed by the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestparties thereto;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiix) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate Borrower signed by a Responsible Officer of the US Borrower certifying that (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) since May 20, 2019 and other than the Chapter 11 Cases and the events that there has been no event or circumstance since typically result from the date filing of a case under Chapter 11 of the Audited Financial Statements Bankruptcy Code, no change, occurrence or development shall have occurred or become known to the Loan Parties that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(xxxi) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on Loan Parties taken as a consolidated basis, before and whole after giving effect to the execution and delivery of Transaction, signed by the Loan Documents and all Credit Extensions to be made on the Closing DateBorrower’s chief financial officer;
(xxixii) certificates of insurance indicating the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or Loan Parties’ compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insuranceDocuments, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender lenders loss payee, as payee (the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance of which shall be satisfactory to the Administrative Agent;
(xxviixiii) evidence of the payoff and termination described in Section 4.01(f);
(xiv) a Loan Notice for a Borrowing; andBorrowing Base Certificate prepared as of July 31, 2019;
(xxviiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Structuring Advisor and each Lender shall have received, at least five received (5) days prior to the Closing Date, (iA) all information necessary Patriot Act compliance information, in each case requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulationsthe Structuring Advisor, to the extent requested Administrative Agent or such Lender in writing at least five (5) Business Days prior to the Closing Date, Date and (iiB) completed reference checks with respect to all new members of each Loan Party’s senior management, the results of which are reasonably satisfactory to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each BorrowerRequired Lenders;
(ixvi) All fees required results of recent UCC and tax lien searches in each of the jurisdictions in which UCC financing statements should be made to be paid evidence or perfect Liens in all assets of the Loan Parties;
(xvii) the Takeback Loan Agreement has been duly executed (or deemed executed pursuant to the Administrative Agent Final Order) by the parties thereto;
(xviii) a flow of funds, including a description of sources and the Joint Lead Arrangers on or before the Closing Date shall have been paiduses, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages Transactions; and
(or any amendments or supplements theretoxix) evidence that all other actions, authorizations, filings, consents and regulatory approvals required, if any, shall have been paid;
(d) Unless waived by the Administrative Agentobtained, the Borrowers shall have paid all fees, charges and disbursements of counsel effected or executed in a manner reasonably acceptable to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Required Lenders;
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Monitronics International Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersArrangers:
(i) (x) executed counterparts of this Agreement and the Guaranty dated the Closing Date and (y) executed counterpart of the Joinder (as defined in the Guaranty), the Security Agreement, the Perfection Certificate and the Receivables Intercreditor Agreement dated the Closing Date; in each case sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]the following personal property collateral requirements:
(A) all certificates, agreements or instruments representing or evidencing the Securities Collateral (as defined in the Security Agreement) accompanied by instruments of transfer and stock powers undated and endorsed in blank;
(B) all other certificates, agreements, including Control Agreements (as defined in the Security Agreement), pledge agreements or similar agreements satisfactory to the Administrative Agent with respect to the jurisdictions set forth on Schedule 4.01(a)(iii)(B) and instruments necessary to perfect the Administrative Agent’s security interest in all Chattel Paper, all Instruments and all Investment Property of each Loan Party (as each such term is defined in the Security Agreement and to the extent required by the Security Agreement);
(C) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Collateral Documents; and
(D) UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted by Section 7.01);
(iv) amendments evidence acceptable to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent of payment or arrangements for payment by the Loan Parties of all applicable recording taxes, fees, charges, costs and otherwise in form and substance reasonably satisfactory to expenses required for the Administrative Agent, amending such terms and provisions recording of the Mortgages to reflect the effectiveness of this AgreementCollateral Documents;
(v) mortgage tax affidavits certificate of the secretary or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies assistant secretary of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of each current Organization Document of such Loan Party certified (to the Organization Documents (including, without limitation, extent applicable) as of a copy recent date by the Secretary of State of the up-to-date articles state of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificateits organization, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, effect and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, Loan Party (D) that attached thereto is a copy of together with a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar another officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer the secretary or assistant secretary executing any Loan Document or any other document delivered the certificate in connection herewith on behalf of each such entity, and this clause (Dv));
(vi) that attached thereto is a copy of a certificate of as to the good standing or equivalent certificate of such each Loan Party issued by (in so-called “long-form” if available) (except where the Loan Party's jurisdiction of organization does not recognize good standing or equivalent status) as of a recent date, from such Secretary of State (or other applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse EffectAuthority);
(xiiivii) a favorable opinion of (A) Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP▇ L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit H-1 with such changes thereto, and with respect to such other matters concerning the Loan Parties and the Loan Documents Documents, as the Required Lenders Arrangers may reasonably request;
request and (xivB) a favorable opinion of (i) local in-house counsel to the each Loan Parties in Canada Party, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit H-2 with such changes thereto, and with respect to such other matters concerning the Loan Parties and the Loan Documents Documents, as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Arrangers may reasonably request;
(xvviii) a favorable opinion of each local counsel to the Loan Parties listed on Schedule 4.01(a)(viii), in Luxembourg each case, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit H-3 with such changes thereto, and with respect to such other matters concerning the Loan Parties and the Loan Documents Documents, as the Administrative Agent Arrangers may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.01(e) and (f) and 4.02(a) and (b) have been satisfied, ; and (B) that there has been no event or circumstance since the date a calculation of the Audited Financial Statements that has had or could be reasonably expected to haveConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended December 31, either individually or in the aggregate, a Material Adverse Effect2009;
(xxx) a certificate of a Financial Officer business plan and budget of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, its Subsidiaries on a consolidated basis, before and after giving effect to the execution and delivery including forecasts prepared by management of the Loan Documents Borrower, of consolidated balance sheets and all Credit Extensions to be made statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the first year following the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insuranceinsurance in form and substance satisfactory to the Administrative Agent, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payeepayee and mortgagee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxii) [Reserved];
(xxv) evidence that “Pay-off” letters in form and substance reasonably satisfactory to the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies Administrative Agent with respect to the Mortgages in form Existing Borrower Credit Agreement having been, or concurrently with the Closing Date being, terminated and substance satisfactory to all Liens securing obligations under the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingExisting Borrower Credit Agreement have been, or concurrently with the Closing Date are being, released; and
(xxviiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender Issuer or any Lender Arranger reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The Closing Date shall have occurred on or before May 31, 2010.
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except After giving effect to the extent that such representations Transaction, the Borrower and warranties specifically refer to an earlier dateits Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (i) the Loans and other Credit Extensions, in which case they shall be true (ii) the Senior Notes, (iii) any Permitted Receivables Facility and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respectsiv) as of such earlier date;other Indebtedness listed on Schedule 7.02.
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a No Material Adverse Effect;Effect shall have occurred since September 30, 2009 and be continuing.
(ig) The Existing Loans and Existing L/C Advances (if any) Trade Receivables Facility shall have been paid amended and restated, and be effective. Notwithstanding the foregoing, but without limiting the Arrangers’ discretion in full (or will respect to certain items described above, the items identified on Schedule 6.21 may be paid in full substantially concurrently delivered after the Closing Date pursuant to Section 6.21 and Schedule 6.21. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the closing of conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ashland Inc.)
Conditions of Initial Credit Extension. The obligation obligations of each the L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder is are subject to satisfaction of the following conditions precedent:
(a) a. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes;
(iii) [Reserved.]
(iv) amendments to the Pledge and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantorthe Loan Parties, together with:
(A) certificates representing the Equity Interests of any Domestic Subsidiary pledged pursuant to the Pledge and Security Agreement (to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged such Equity referred to therein Interests are certificated) accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casesearch results, dated as of a recent date with respect prior to the Borrower and each other initial Credit Extensions, together with copies of all effective Uniform Commercial Code financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as of the Closing Date,debtor, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)thereby;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as Lender and in form and substance satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) financial projections and forecasts prepared by management of the Borrower and reasonably satisfactory to the Administrative Agent, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for the five year term of the Facilities;
(ix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, ; and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxx) a certificate of a Financial Officer duly completed Compliance Certificate as of the US Borrower attesting to the Solvency last day of the US Borrower and fiscal quarter of Equinix ended on September 30, 2014 (provided that the Restricted Subsidiaries, calculation of the Consolidated Net Lease Adjusted Leverage Ratio shall be on a consolidated basis, before and pro forma basis after giving effect to (A) the execution Indebtedness incurred (x) hereunder and delivery the use of the Loan Documents and all Credit Extensions to be made proceeds thereof on the Closing DateDate and (y) pursuant to the 5.375% Senior Notes Due 2022 and the 5.750% Senior Notes Due 2025 and (B) the redemption of the 7.00% Senior Notes Due 2021)), signed by a Responsible Officer of the Borrower;
(xxixi) pay-off statements and/or lien release authorizations from (A) the Audited Financial Statements Existing Administrative Agent with respect to interest, fees and expenses under the Unaudited Quarterly Financial StatementsExisting Credit Agreement and other Existing Loan Documents, and (B) such other secured parties of record shown on any of the financing statements referred to in subclause (iii)(C) above, to the extent such financing statements disclose Liens on the Collateral;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuer or the Swing Line Lender or any Lender Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All b. Any fees required to be paid to the Administrative Agent and Agent, the Joint Left Lead Arrangers on Arranger or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related including, without limitation, any fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) Lenders as shall have been paid;separately agreed upon in writing in the amounts so specified.
(d) Unless waived by the Administrative Agent, the Borrowers c. The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(e) d. The representations and warranties Closing Date shall have occurred on or before December 29, 2014. Without limiting the generality of the Borrowers and provisions of the lastpenultimate paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Equinix Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the date hereof (in the case of this Agreement) or the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyNewpark;
(ii) Notes a Note (or amendment and restatement of a Note, as the case may be) executed by the Borrowers in favor of each Lender requesting a Note (or amendment and restatement of a Note, as the case may be);
(iii) [Reserved.]
(iv) amendments to and reaffirmations executed counterparts of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorBorrower, together with:
(A) to completed requests for information, dated on or before the extent required thereby and not previously delivered to date of the Administrative Agentinitial Credit Extension, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed listing all effective financing statements filed in blank or registered in the name of such nominee or nominees jurisdictions as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem determine necessary or desirable in order to perfect the Liens created under the Security AgreementAgreement that name any Borrower as debtor, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) together with copies of each Luxembourg Loan Party’s shareholder register such other financing statements, and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(DB) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under thereby (unless the Security Agreement permits such action to be taken after the Closing Date).
(iv) amended and restated Mortgages, executed by Newpark Drilling in favor of the Administrative Agent; provided that with respect to that certain First Preferred Fleet Mortgage by Newpark Drilling in favor of the Administrative dated as of July 6, 2016 (the “Existing Fleet Mortgage”), inasmuch as the Borrowers intend to transfer ownership of the vessels covered by the Existing Fleet Mortgage to a new Loan Party and re-register such vessels within ninety (90) days after the Closing Date, the Borrowers shall have ninety (90) days after the Closing Date (or such longer period as may be agreed by the Administrative Agent in its discretion) (the “Registration Period”) to effectuate such transfer of ownership and re-registration, and none of the representations, warranties or covenants contained in the Existing Fleet Mortgage shall be deemed with reaffirmed or restated by this Agreement (it being agreed and acknowledged by the Administrative Agent and Lenders that, notwithstanding anything to the contrary, none of the representations, warranties or covenants contained in the Existing Fleet Mortgage shall be made, brought down or complied with until after the Registration Period has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementsexpired);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each such Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xivii) with respect to any Luxembourg Loan Party, a certificate favorable opinions of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Sidley Austin LLP, counsel to the Loan PartiesBorrowers, and (B) local Nevada counsel to Dura-Base as to corporate matters in respect of Dura-Base, each addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties Borrowers and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower Newpark certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxix) financial projections of Newpark and its Subsidiaries on a certificate consolidated basis prepared by management of a Financial Officer Newpark, including consolidated balance sheets and statements of income or operations and cash flows of Newpark and its Subsidiaries on an annual basis for Newpark’s current fiscal year, in form and substance reasonably satisfactory to the US Borrower Administrative Agent;
(x) certificates attesting to the Solvency of the US each Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution entering into of this Agreement and delivery any repayment or incurrence of the Loan Documents and all Credit Extensions to be made Indebtedness on the Closing DateDate and the payment of fees and expenses in connection therewith, from the chief financial officer of Newpark;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixii) such other assurances, certificates, documents, consents consents, approvals or opinions as the Administrative Agent, any the L/C IssuerIssuers, the Swing Line Lender Lenders or any Lender reasonably may require.
(b) Each Lender shall have received, require and are identified at least five three (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (53) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification date that all other conditions set forth in relation to each Borrower;this Section 4.01 shall have been satisfied.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Newpark shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Newpark and the Administrative Agent);.
(ed) The representations All accrued but unpaid interest, commitment fees and warranties letter of credit fees under the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and Existing Credit Agreement owing to the Existing Lenders as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Date shall have been paid in full full, and any outstanding Eurodollar Rate Loans (or will be paid as defined in full substantially concurrently with the closing of this Agreement Existing Credit Agreement) as of the date hereofClosing Date shall be deemed to have been borrowed hereunder and shall continue to bear interest at the rate applicable thereto under the Existing Credit Agreement until the end of the applicable interest periods thereof.
(e) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Borrower, and the validity against such Borrower, of the Loan Documents to which it is a party shall be in full force and effect.
(which payment mayf) Each Loan Party shall have provided, in form and substance satisfactory to the Administrative Agent and each Lender, all documentation and other information as the Administrative Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to the Administrative Agent and Lenders in relation to such Loan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for the avoidance purposes of doubt, be made determining compliance with the proceeds of a Borrowing made under conditions specified in this Section 4.01, each Lender that has signed this Agreement on shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals originals, telecopies or telecopies transmissions by similar electronic means (including PDF files) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyBorrower Security Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementCollateral Documents, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,Collateral Documents;
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(Div) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and;
(Ev) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(vi) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Collateral Documents has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements statements, and Personal Property Security Act discharge verification statementswaivers and consents from landlords, mortgagees, warehousemen and bailees);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiix) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) ; and a favorable opinion of Durham ▇▇▇▇▇ & ▇▇▇▇▇▇▇, PC, local counsel to the Loan Parties Borrower in Luxembourg Nevada, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties Borrower and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxi) a certificate signed by a Responsible Officer of the US Borrower (i) attaching true, correct and complete copies of each Material Contract and (ii) certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements June 27, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in full force and effect, together with the related certificates of insurance, insurance naming the Administrative Agent, on behalf of the Secured Parties, Agent as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender Agent may reasonably may requirerequest.
(b) Each Lender There shall have receivednot exist any action, at least five (5) days prior to the Closing Datesuit, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulationsinvestigation or proceeding pending or, to the extent requested at least five (5) Business Days prior to knowledge of the Closing DateBorrower, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification threatened in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on any court or before the Closing Date shall have been paid, (ii) all fees required to any arbitrator or Governmental Authority that could reasonably be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The i. Receipt by the Administrative Agent’s receipt Agents of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agents and each of the Lenderstheir legal counsel:
(i) executed counterparts of this Agreement, executed by the Borrower, each Guarantor, each Agent and (subject to Section 11.21) each Lender (and any Revolving Credit Lender under and as defined in the Existing DHI Credit Agreement that is not a Revolving Credit Lender hereunder shall have confirmed the termination of its commitment under the Existing DHI Credit Agreement and the Guarantyrepayment of all amounts owing to it thereunder);
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, Agreement duly executed by each Borrower and each Guarantorparty thereto, together with:
(Ai) to the extent required thereby and not previously delivered to the Administrative AgentCollateral Trustees, certificates, if any, certificates representing the Pledged Equity referred to therein (and as defined) in the Security Agreement accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees Pledged Debt referred to (and as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement defined) therein indorsed in blank,
(Bii) to the extent not already duly filed pursuant to the Existing DHI Credit Agreement or as requested by the Administrative Agent, proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent Agents may deem necessary or desirable in order to perfect the Liens first (other than any Permitted Liens) priority liens and security interests created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements Agreement covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(Ciii) copies evidence of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, insurance in each case, dated effect as of a recent date the Closing Date with respect to the Borrower and each other Loan Party its Restricted Subsidiaries as described on Schedule 4.01(a)(iii)(C) (it being understood that the delivery of such evidence is a condition precedent under this Section 4.01 only and that the Borrower’s obligation to maintain insurance from and after the Closing DateDate shall be governed by Section 6.07),
(Div) evidence of the completion of all other actions, recordings and filings of or with respect amendments to the Security Agreement that Control Agreements and Account Control Agreements referred to in the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect Security Agreement, duly executed by the Liens created therebyrelevant securities intermediary and depositary banks, as necessary, and
(Ev) evidence that all other action that the Administrative Agent Agents may reasonably deem necessary or desirable in order to perfect the Liens first (other than any Permitted Liens) priority liens and security interests created under the Security Agreement has been taken commenced (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementsother than the filings referred to in clause (B) above);
(viiiv) a Canadian Security Confirmation supplements (the “Mortgage Supplements”) to the Mortgages set forth on Schedule 4.01(a)(iv), substantially in the form of Exhibit G (with such changes as may be required to account for local law matters), duly executed by each Canadian the appropriate Loan Party, together with:
i) delivery of the Mortgage Supplements in the appropriate form for filing or recording in order to continue a valid first and subsisting Lien, subject only to (i) Permitted Encumbrances (as defined in the Mortgages) and (ii) Permitted Liens, in each case on the property described therein, in favor of the Collateral Trustees, for the benefit of the appropriate Secured Parties and reasonable evidence that all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees required to be paid in connection with the filing or recording of such Mortgage Supplements shall be paid;
ii) regarding all Real Property for which Mortgages were obtained in connection with the Existing DHI Credit Agreement, (i) evidence in the form of updated title searches, title reports or “abstractor” certificates, “title” certificates or so-called “nothing further” certificates, as applicable, reasonably sufficient to determine whether each Loan Party and each of its Subsidiaries required to execute and deliver a Mortgage Supplement pursuant to this Agreement has good title in fee simple to, or valid leasehold interests in, all Collateral covered by the Mortgages (other than the properties comprised of “pipelines” or “gathering systems”) and (ii) a modification/date-down endorsement to each existing Mortgage Policy extending the effective date of the policy to the date of recording for the applicable Mortgage Supplement and insuring that that the modification of the insured mortgage does not impair the validity, enforceability or priority of the insured mortgage, as modified; and
iii) such other documents as may be reasonably necessary to record the Mortgage Supplements, to issue the modification/date-down endorsements, or to create, perfect or preserve the security interests granted by the Mortgages or the Mortgage Supplements;
(viiiv) the Luxembourg Security Confirmation Collateral Trust Agreement, duly executed by each Luxembourg Loan Partythe parties thereto;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or assistant secretary of each Loan Party as the Administrative Agent Agents may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agents;
(xivix) a favorable opinion of (i) appropriate local counsel to the Loan Parties in Canada the jurisdictions set forth in Schedule 4.01(a), addressed to the Administrative each Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgents;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bc) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lenders shall have requested, including, without limitation, information as to obligations under Pension Plans, Multiemployer Plans (to the knowledge of any Loan Party), collective bargaining agreements and other arrangements with employees;
(xii) a certificate of a Financial Officer of the US Borrower attesting Request for Credit Extension relating to the Solvency of initial Credit Extension, provided that any such Request for Credit Extension that selects the US Borrower and Eurodollar Rate for the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made hereunder on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent Date shall have been so received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ by 12:00 noon (or their respective predecessors’eastern time) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) three Business Days prior to the Closing Date, together with one or more written indemnities in form and (ii) substance satisfactory to the extent Payment Agent obligating the Borrower to compensate the Lenders for losses, costs and expenses of the type described in Section 3.05 that may be incurred by them in the event such Credit Extensions are not made on the date requested in such Request for Credit Extension;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying, as of the Closing Date, that there exists no “Principal Property” (as defined in, and for purposes of Section 10.06 of, the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) and the Liens on the Collateral securing the Secured Obligations are otherwise permitted under the terms of all agreements and instruments to which the Parent Companies or the Parent Subsidiary Guarantors or the Borrower or any of its Subsidiaries is a party, including, without limitation, the Indentures;
(xiv) the Borrower shall have entered into such Lendercash collateral account agreements with respect to the Term L/C Collateral Account (and control agreements relating thereto) as the Collateral Agent shall request, a Beneficial Ownership Certification each in relation form and substance satisfactory to each Borrower;the Collateral Agent, and the Borrower shall have funded the Term L/C Collateral Account in the amount required by Section 2.03(k) as of the Closing Date; and
(xv) such other collateral documents as the Administrative Agents may reasonably request.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before extent that written invoices have been provided, all costs and expenses of the Closing Date Agents shall have been paid, paid and (iii) all mortgage tax principal, accrued interest, accrued fees and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior confirmed in writing by the Payment Agent to the Closing Date, plus such additional Borrower) other amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or owing to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Agents and the Administrative Agent);
Lenders under (e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of defined in) the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this DHI Credit Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (it being understood that all amounts held under the Term L/C Collateral Account under (and as defined in) the Existing DHI Credit Agreement shall be applied to the extent required for the repayment of the Term L/C Facility Term Loans under and as defined therein).
iii. The Lenders shall be reasonably satisfied with the environmental affairs of the Parent and its Subsidiaries.
iv. Evidence satisfactory to the Administrative Agent that (i) the Merger and other transactions contemplated under the LS Merger Agreement to occur on the Closing Date (as defined therein) shall have occurred or will be paid substantially concurrently simultaneously occur with the closing of this initial Borrowings hereunder in accordance with the LS Merger Agreement and (ii) the LS Holding Companies, the LS Operating Companies, the Sithe Holding Companies and the Sithe Operating Companies shall have been or shall be contributed on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than Closing Date by the outstanding principal amount of Existing Loans and ExistingParent to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc.)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, duly executed by each Loan Party thereto;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions counterparts of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Pledge Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein therein, accompanied by undated stock powers executed in blank or registered in the name case of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blankcertificated Pledged Equity,
(B) proper financing statements, Personal Property Security Act financing statements either duly filed on or other filings before the day of the initial Credit Extension or in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Collateral or the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(ED) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Pledge Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(viiiii) a Canadian Security Confirmation duly Notes executed by the Borrower in favor of each Canadian Loan PartyLender requesting Notes;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization formation and each other jurisdiction where its ownership(x) in the case of the Borrower, lease or operation also in California, New York, Oregon, Missouri, New Hampshire and Washington, (y) in the case of properties or MEMC Pasadena, Inc., a Guarantor, also in Louisiana, and (z) in the conduct case of its business requires such qualificationthe Sun Edison LLC, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectGuarantor, also in California, Oregon, Massachusetts, Colorado, Maryland, Texas and New Jersey;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning substantially in the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestform of Exhibit H hereto;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party the Borrower:
(A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (y) stating that no such consents, licenses or approvals are so required;
(xixB) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ; and
(BC) certifying that there has been no event or circumstance (x) since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (y) since November 23, 2009 that purports to adversely affect this Agreement, any other Loan Document or any other aspect of the transactions contemplated hereby;
(xxviii) a duly executed solvency certificate of a the Chief Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance another financial officer satisfactory to the Administrative Agent) of the Borrower in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders and confirming the representation and warranty set forth in Section 5.19;
(xxviiix) a Loan Notice for a Borrowingcertificates of insurance and/or other evidence, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating compliance with the insurance requirements of this Agreement;
(x) evidence that each of the Existing Credit Agreements has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under each Existing Credit Agreement, if any, have been or concurrently with the Closing Date are being released; and
(xxviiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.15, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby stamped receipt copies of proper STB Filings and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements duly filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the such Security Agreement;
(B) completed requests for information, dated on or before the Canadian Debentures date of the initial Credit Extension, listing the financing statements referred to in clause (A) above, together with such STB Filings as the Administrative Agent shall reasonably require to determine the ownership of any one or more of the Railcars, and all other effective financing statements and STB Filings filed in the Canadian Debenture Pledge Agreements,jurisdictions referred to in clause (A) above that name the Borrower as debtor, together with copies of such other and financing statements and STB Filings as the Administrative Agent may request;
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(D) control agreements by the Borrower in favor of the Administrative Agent with respect to the Reserve Account, the Lockbox Account and such other control agreements in favor of the Administrative Agent with each bank or financial institution (other than the Administrative Agent) at which the Borrower maintains deposit accounts, duly executed by the appropriate parties; and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements, STB Filing termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) a Canadian Security Confirmation the Master Cash Management Service Agreement and Supplement to the Master Cash Management Service Agreement Re: Wholesale Lockbox and Lockbox Related Services, duly executed by each Canadian Loan Partythe Borrower and the Administrative Agent (collectively, the “Lockbox Agreement”);
(viiiv) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan PartyManagement Fee Subordination Agreement;
(ixvi) the FreightCar Guarantee executed by the Guarantor;
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formedincorporated, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization Delaware and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiix) a letter of direction from the Borrower addressed to the Administrative Agent containing funds flow information with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as the proceeds of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect Loans on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xiix) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate favorable opinions of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of Winston & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters that are customary for transactions under this Agreement and as may be reasonably requested by the Administrative Agent and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivxi) a favorable opinion opinions of (i) local ▇▇▇▇▇▇ and ▇▇▇▇▇▇, special counsel to the Loan Parties in Canada Parties, addressed to the Administrative Agent and each Lender, as to customary regarding the priority and perfection of the Borrower’s STB Filings in favor of the Administrative Agent and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xvxii) a favorable opinion evidence that the Borrower has received an initial cash equity contribution of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request$1,000,000 from FreightCar America;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixiii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxiv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (be) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxv) a certificate of a Financial Officer business plan and budget of the US Borrower and its Subsidiaries on a consolidated and consolidating basis, including forecasts prepared by management of the Borrower, of consolidated and consolidating balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a monthly basis;
(xvi) certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the each Loan Documents and all Credit Extensions to be made on the Closing DateParty from its chief financial officer;
(xxixvii) the Audited Financial Statements certified copies of each employment agreement and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided other compensation arrangement with each executive officer of any Loan Party or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), any of its Subsidiaries as the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; andrequest;
(xxiiixviii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxix) [Reserved]a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended June 30, 2008, signed by chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(xxvxx) evidence that the Canadian obligations of the Borrower as a co-borrower and grantor under the FreightCar Credit Facility has complied been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date is being, terminated and all Liens granted by the Borrower securing obligations under such FreightCar Credit Facility have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixxi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender Agent or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five Five (5) Business Days prior to the Closing Date, the Borrower shall provide the Administrative Agent with a copy of the form of Lease and (ii) Lease Schedule, which shall be satisfactory to the extent requested Administrative Agent in its sole discretion, to be used by such Lender, a Beneficial Ownership Certification the Borrower in relation to each Borrower;connection with all leases of Railcars and related equipment and property.
(i) All fees required to be paid to the Administrative Agent Agent, the Arranger and the Joint Lead Arrangers any rail equipment appraisal firms on or before the Closing Date shall have been paid, ; and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(d) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(e) The representations All information heretofore or contemporaneously herewith furnished in writing by any Loan Party to the Administrative Agent or any Lender for purposes of or in connection with this Agreement and warranties the transactions contemplated hereby is, true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information is incomplete by omitting to state any material fact necessary to make such information not misleading in light of the Borrowers circumstances under which made, in each case, when taken as a whole (it being recognized by the Administrative Agent and each other Loan Party contained in Article V or the Lenders that any other Loan Document projections and forecasts provided by the Borrower are true based on good faith estimates and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall assumptions believed by the Borrower to be true and correct in all respects) on and reasonable as of the date of the Closing Date, except to applicable projections or assumptions and that actual results during the extent that period or periods covered by any such representations projections and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality forecasts may differ from projected or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;forecasted results).
(f) There has been no event or circumstance since The Administrative Agent shall be satisfied with the date Borrower’s management and with the plans of the Audited Financial Statements Manager and RAS Data Services to manage and operate the Borrower as set forth in their respective Management Agreements, together, with a signed acknowledgment from the Manager granting the Administrative Agent access rights to locations of the Collateral, each in form and substance satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has had signed this Agreement shall be deemed to have consented to, approved or could accepted or to be reasonably expected satisfied with, each document or other matter required thereunder to have, either individually be consented to or in approved by or acceptable or satisfactory to a Lender unless the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Administrative Agent shall have been paid in full (or will be paid in full substantially concurrently with received notice from such Lender prior to the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement Agreement, duly executed by each party hereto, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebythereby (in accordance with and subject to the terms of the Security Agreement), and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (in accordance with and subject to the terms of the Security Agreement) (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian an intellectual property security agreement, in substantially the form of Exhibit E to the Security Confirmation Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Canadian Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the secretary of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestJoint Lead Arrangers;
(xivviii) a favorable opinion of (i) local internal counsel to the Loan Parties in Canada Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties in form and the Loan Documents as the Administrative Agent may substance reasonably request and (ii) local counsel satisfactory to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestJoint Lead Arrangers;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a partyparty as of such date, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a “Material Adverse Effect” (as such term is defined in the Existing Credit Agreement);
(xxxi) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution Transaction, from the Chief Financial Officer or the treasurer of the Borrower;
(xii) an environmental assessment report with respect to each of the properties identified to be mortgaged specified on Schedule 5.08(c), and delivery the Administrative Agent shall be reasonably satisfied with the form and substance thereof;
(xiii) evidence that the loans outstanding under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, repaid in full and such Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(xiv) deeds of trust, trust deeds and mortgages, in substantially the form of Exhibit H (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the properties identified to be mortgaged specified on Schedule 5.08(c) (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(1) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid,
(2) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(3) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all Credit Extensions to be made on necessary fees (where applicable) have been paid, and dated no more than 30 days before the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available , certified to the Administrative Agent (including pursuant and the issuer of the Mortgage Policies in a manner satisfactory to the Existing Credit Agreement), the Administrative Agent shall have received by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all existing Phase I environmental assessments buildings and other auditsimprovements, assessmentsany off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or reports relating on to environmental conditions or compliance with Environmental Laws which have been previously conducted or such property, and other reportsdefects, other than encroachments and other defects acceptable to the Administrative Agent; provided that notwithstanding anything in each case this clause (3) to the contrary, to the extent in that the possession Mortgage Policies for the properties identified to be mortgaged on Schedule 5.08(c) hereto include customary survey coverages without the need to comply with this clause (3), this clause (3) shall not apply with respect to such properties,
(4) [intentionally omitted]
(5) such other consents, agreements, and confirmations of the Borrowers, third parties as the Administrative Agent may reasonably require deem necessary of desirable and evidence that all other action that the Administrative Agent shall be satisfied may deem necessary or desirable in its reasonable discretion with order to create valid first and subsisting Liens on the condition property described in the Mortgages has been taken;
(xv) favorable opinions of the properties of the Borrowers and their Subsidiaries with respect ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrowers’ Loan Parties in the jurisdiction where Mortgages are to be recorded, as to certain corporate matters relating to the mortgages in form and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Lawssubstance reasonably satisfactory to the Joint Lead Arrangers; and
(xxiiixvi) evidence that all insurance required to be maintained pursuant favorable opinions of local counsel to the Loan Documents (including title insurance) has been obtained and is Parties in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to jurisdictions where the Mortgages are to be recorded in form and substance reasonably satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may requireJoint Lead Arrangers.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid by the Borrower to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid by the Borrower to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) due and payable hereunder to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before March 1, 2010. Without limiting the generality of the Borrowers provisions of Sections 9.04 and 11.01, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be either originals or telecopies (or electronic copies, followed in either case promptly by originals) , unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyOperating Company;
(ii) Notes an amended and restated Note executed by the Borrowers in favor of each Lender requesting a NoteLender;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgagesthe Confirmation Agreement, duly executed by confirming the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the existing Security AgreementDocuments, duly executed by each Borrower and each GuarantorCredit Party, together with:
(A) , to the extent required thereby and in each case not previously delivered to the Administrative Agent, certificates, if any, :
(A) certificates representing the any Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instrumentsinstruments evidencing the Pledged Debt indorsed in blank, if any, evidencing any Indebtedness pledged by to the Loan Parties extent not previously delivered to the Administrative Agent pursuant to the Security Agreement indorsed in blankExisting Credit Agreement,
(B) stamped receipt copies of proper financing statements, Personal Property Security Act financing statements duly filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, to the Canadian Debentures and extent not previously received by the Canadian Debenture Pledge AgreementsAdministrative Agent pursuant to the Existing Credit Agreement,
(C) copies of each Luxembourg Loan Party’s shareholder register and completed UCC, Personal Property Security Act, federal and state tax and bankruptcy judgment lien searches, in each casesearch requests, dated as of through a recent date with respect approved by the Administrative Agent, for such Credit Parties as may be agreed to between the Borrower Borrowers and each other Loan Party as of the Closing DateAdministrative Agent, in its reasonable discretion,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent any Lender may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Documents has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(viiiv) a Canadian Security Confirmation modifications (the “Closing Modifications”), in substantially the form of Exhibit G (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) to the Mortgages covering the properties located in Colorado, Indiana, Kentucky, Mississippi, Oregon and South Carolina (the “Closing Mortgages”), each duly executed by each Canadian Loan the appropriate Credit Party, together with:
(A) evidence that counterparts of the Closing Modifications have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create, together with the Closing Mortgages, a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
(viiiB) modifications to the Mortgage Policies for the Closing Mortgages, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Closing Mortgages, as modified by the Closing Modifications, to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Credit Documents, and providing for such other affirmative insurance (including (i) endorsements for future advances under the Credit Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, (ii) standard flood hazard determination forms and (iii) if any property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Luxembourg Security Confirmation duly executed Borrowers as to the existence of special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (y) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by each Luxembourg Loan PartyThe National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent), affidavits of no change with respect to surveys and such other documents as the Administrative Agent or title insurer may deem necessary or desirable; and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Closing Mortgages has been taken, subject only to Permitted Encumbrances;
(ixv) such certificates an officer’s certificate (A) either (1) attaching a certified copy of each Credit Party’s Organizational Documents or (2) certifying that no changes have been made to the copies delivered under the Existing Credit Agreement, (B) attaching resolutions or other actionauthorizing the Transaction, each, in form and substance satisfactory to the Administrative Agent, and (C) attaching incumbency certificates and/or other certificates of Responsible Officers of each Loan Credit Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Credit Documents to which such Loan Credit Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each Borrower and each Guarantor Credit Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of incorporation or organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPBlank Rome, counsel to the Loan Credit Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Required Lenders may reasonably request;
(xivviii) a favorable opinion of (i) local counsel to each of the Loan Credit Parties (other than those Credit Parties organized under the Laws of Connecticut, Hawaii, New York and Oklahoma, which are, in Canada each instance, without tangible or other material assets), addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request, including, where applicable, the Closing Modifications;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying Borrowers certifying: (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2010, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
; (xxC) a certificate of a Financial Officer of the US Borrower attesting all materials and information provided to the Solvency of Lenders by the US Borrower Credit Parties in connection with the Transaction was, at the time provided, and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions continues to be made on complete and correct in all material respects as of the Closing Date;
; and (xxiD) either (1) attaching copies of all consents, licenses and approvals required in connection with the Audited Financial Statements consummation by such Credit Party of the Transaction and the Unaudited Quarterly Financial Statements;
(xxii) execution, delivery and performance by such Credit Party and the validity against such Credit Party of the Credit Documents to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement)which it is a party, the Administrative Agent and such consents, licenses and approvals shall have received all existing Phase I environmental assessments be in full force and other audits, assessmentseffect, or reports relating to environmental conditions (2) stating that no such consents, licenses or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Lawsapprovals are so required; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid Bring down title searches with respect to the Borrowers’ fifty largest cemeteries, based on 2011 revenue (though September 30, 2011), which are subject to Mortgages (other than the Closing Mortgages, any leasehold Mortgages or any amendments Mortgages recorded in Puerto Rico, Ohio or supplements thereto) shall have been paid;Michigan), evidencing that the Collateral Agent has a continuing valid and perfected first priority lien and security interest in and to the property subject to such Mortgages (subject only to Permitted Liens, including the encumbrances disclosed in the April 2011 title policies delivered in connection with the Existing Credit Agreement).
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(ib) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iic) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vid) the Pledge and Security Agreement, Agreement duly executed by each Borrower and each Guarantor, Loan Party; together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity Shares referred to therein in the Pledge and Security Agreement accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, UCC of all jurisdictions that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Table of Contents Administrative Agent or Collateral Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viie) a Canadian Security Confirmation deeds of trust, mortgages, leasehold deeds of trust and leasehold mortgages, in substantially the form of Exhibit I (with such changes as may be reasonably satisfactory to the Administrative Agent and Collateral Agent and their counsel to account for local law matters) and covering substantially all of the operating assets of the Borrower and its Subsidiaries owned on the Closing Date (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.13, in each case as amended, the “Mortgages”), duly executed by each Canadian the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been or will be paid upon recording,
(B) in respect of the Chico Plant a fully paid title insurance policy (the “Mortgage Policies”) in form and substance, with endorsements and in amounts reasonably acceptable to the Administrative Agent and Collateral Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent and Collateral Agent, insuring the Mortgage in respect of such property to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, and
(C) evidence that all other action that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixf) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer Table of Contents thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer Term Loan B Lender to make any Credit Extension hereunder, of each Revolving Lender to continue to make Credit Extensions hereunder, and of each Lender to make its initial Credit Extension hereunder is execute and deliver this Agreement are all subject to satisfaction of the following conditions precedent:precedent (in addition to any applicable conditions precedent contained in Section 4.02):
(a) The Unless either (x) waived by (A) the Administrative Agent with respect to immaterial matters or items specified in clause (iv) or (xvii) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date, or (B) all the Lenders in all other cases, or (y) deferred to a reasonable later date after the Closing Date at the reasonable discretion of the Administrative Agent pursuant to the post-closing agreement (the "Post-Closing Agreement") entered into between the Borrower and the Administrative Agent as of the Closing Date, a copy of which will be delivered to each of the Lenders, the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of (A) this Agreement, (B) a Guaranty Joinder Agreement from each Lehigh Company that is (after giving effect to the Lehigh Acquisition) a Domestic Subsidiary, (C) a Security Joinder Agreement from each Lehigh Company that is (after giving effect to the Lehigh Acquisition) a Domestic Subsidiary, (D) a Pledge Joinder Agreement from each Lehigh Company that is (after giving effect to the Lehigh Acquisition) a Domestic Subsidiary and owns Pledged Interests, (E) a Pledge Agreement Supplement or Pledge Joinder Agreement, as applicable, from the Borrower and each Domestic Subsidiary not described in clause (D) that owns any Subsidiary Securities of any Lehigh Company that is (after giving effect to the Lehigh Acquisition) a Domestic Subsidiary or a Direct Foreign Subsidiary, (F) the Consolidated Security Instrument Amendment, (G) an IP Security Joinder Agreement from each Lehigh Company that is (after giving effect to the Lehigh Acquisition) a Domestic Subsidiary and owns any Intellectual Property, and (H) each other Security Instrument required to be delivered in connection herewith, in each case sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(iiA) Revolving Loan Notes executed by the Borrowers Borrower in favor of each Revolving Lender requesting such a Note or to whom a Revolving Loan Note (in this instance, as defined in the Existing Agreement) was issued under the Existing Agreement (in substitution thereof in such case), (B) if requested by the Swing Line Lender, a Swing Line Note executed by the Borrower in favor of the Swing Line Lender in substitution of the Swing Loan Note (as defined in the Existing Agreement) issued to the Swing Line Lender under the Existing Agreement, (C) Term Loan A Notes executed by the Borrower in favor of each Tem Loan A Lender requesting such a Note or to whom a Term Loan Note (in this instance, as defined in the Existing Agreement) was issued under the Existing Agreement (in substitution thereof in such case), and (D) Term Loan B Notes executed by the Borrower in favor of each Term Loan B Lender requesting such a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other actionOrganizational Action, incumbency certificates (including specimen signatures) and/or other certificates of Responsible Officers of each the signing Loan Party Parties as the Administrative Agent may reasonably require evidencing to evidence the identity, identities of and the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xiv) with respect to each of the Loan Parties (determined after giving effect to the Lehigh Acquisition and the Closing Date), such documents and certifications as the Administrative Agent may reasonably require to evidence that each such Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing in its jurisdiction of formation and (with respect to the Lehigh Company that is a Loan Party) qualified to engage in business in its each jurisdiction of organization and each other jurisdiction in which it is required to be qualified to engage in business except where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do be so qualified could not reasonably be expected to have a Material Adverse Effect, including certified copies of each such Loan Parties' Organization Documents, certificates of good standing and/or qualification to engage in business;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been is no event event, circumstance, action, suit, investigation or circumstance proceeding pending or, to the best of the Borrower's knowledge, threatened in any court or before any arbitrator or Governmental Authority since the date of the Audited Financial Statements that which has had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect;
, (xxC) a certificate of a Financial Officer that (I) the Lehigh Acquisition has been consummated, or is being consummated substantially simultaneously herewith, in accordance in all material respects with the terms of the US Borrower attesting Lehigh Acquisition Documents and in material compliance with applicable law and regulatory approvals, (II) all material governmental, shareholder, director and third party consents and approvals necessary in connection with the Lehigh Acquisition shall have been obtained, (III) all such consents and approvals shall be in force and effect, (IV) all applicable waiting periods shall have expired (including the expiration or early termination of any ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ waiting period) without any action being taken by any Governmental Authority that could restrain, prevent or impose any material adverse conditions on the Lehigh Acquisition or that could seek or threaten any of the foregoing, (V) the Lehigh Debt Assumption and/or Release has been successfully consummated or is being consummated substantially simultaneously herewith, including the receipt of all necessary releases of the appropriate Lehigh Companies and consents from creditors of such Lehigh Indebtedness with respect thereto, (VI) all Lehigh Indebtedness not subject to the Solvency Lehigh Debt Assumption and/or Release has been paid in full and terminated or is being paid in full and terminated substantially simultaneously herewith, (VII) the aggregate purchase price of the US Lehigh Acquisition does not exceed the sum of (x) $155,000,000 (including any amounts deposited into any escrow account for payment of indemnities or other amounts under any of the Lehigh Acquisition Documents, but excluding the Lehigh Earn-Out and transaction expenses), and (y) the Lehigh Earn-Out (which shall not exceed $25,000,000 in the aggregate), and (VIII) except those conditions set forth on Schedule 5.17(b), each of which is subject to the terms of the Post-Closing Agreement, all conditions precedent to the consummation of the Lehigh Acquisition have been satisfied without waiver (except to the extent such waiver is not material or detrimental to the Lenders, or is set forth on Schedule 5.17(a)), (D) as to the matters described in Section 4.01(d), (E) that as of the Closing Date the Consolidated EBITDA of the Borrower and its Subsidiaries (computed pro forma for the Restricted Subsidiariesconsummation of the Lehigh Acquisition and all prior acquisitions included in the relevant period and adjusted to exclude up to $5,000,000 of net non-recurring expenses associated with the Lehigh Acquisition) for the most recently ended Four-Quarter Period of the Borrower is not less than $120,000,000, on a consolidated basis(F) the person to whom the Lehigh Indebtedness is owed, before the amount thereof, and whether such portion of the Lehigh Indebtedness is to be paid in full and terminated or assumed or released pursuant to the Lehigh Debt Assumption and/or Release, and (G) after giving effect to the execution and delivery Lehigh Acquisition, the payment in full or full assignment of all amounts owing under the Lehigh Indebtedness (such that none of the Loan Documents Borrower, any of its Subsidiaries or any Lehigh Company is obligated on any such Lehigh Indebtedness), the occurrence of the Closing Date and all Credit Extensions to be made on the Closing Date;
, and the repayment of all Loans repaid on the Closing Date, (xxiW) the Audited Financial Statements Borrower and each of its Subsidiaries (other than Immaterial Subsidiaries) shall be Solvent, both individually and collectively, (X) the Unaudited Quarterly Financial Statements;
difference of the Aggregate Revolving Credit Commitments over the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations is not less than $30,000,000, and (xxiiY) to Consolidated Net Worth is not less than the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreementamount set forth in Section 7.13(a)(A), the Administrative Agent shall have received all existing Phase I environmental assessments and together with such other audits, assessments, evidence of or reports documentation relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, any matters described in each case to the extent in the possession of the Borrowers, (A) through (G) above as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateralrequest;
(xxivvi) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements an opinion or opinions of counsel to existing title insurance policies with respect to the Mortgages each Loan Party in form and substance satisfactory to the Administrative Agent;
(xxviivii) with respect to each opinion delivered in connection with the Lehigh Acquisition, either (A) reliance letters from applicable counsel to the Lehigh Companies or the Lehigh Seller or both, as applicable, or the Borrower entitling the Administrative Agent and the Lenders to rely on such opinion, or (B) inclusion of the Administrative Agent and the Lenders as reliance parties in such opinion;
(viii) (A) the consolidated financial statements of Lehigh and its Subsidiaries for the fiscal years ended December 31, 2001 and 2002, including balance sheets and related statements of income, stockholders' equity and comprehensive income, and cash flows, all audited and opined on by PriceWaterhouseCoopers LLP and prepared in conformity with GAAP, (B) interim quarterly financial statements of the Borrower and its subsidiaries, and of Lehigh and its subsidiaries, respectively, dated the end of the most recent fiscal quarter for which financial statements are available, (C) a Loan Notice balance sheet of the Borrower and its Subsidiaries, prepared by management of the Borrower on a pro forma combined basis for the consummation of the Lehigh Acquisition and the occurrence of the Closing Date, as of June 30, 2003, (D) income statements of the Borrower and its Subsidiaries, prepared by management of the Borrower on a Borrowing; and
(xxviii) such other assurancespro forma combined basis for the consummation of the Lehigh Acquisition and the occurrence of the Closing Date, certificatesfor the fiscal year ended December 31, documents2002, consents or opinions as for the Administrative Agentsix-month period ended June 30, any L/C Issuer, 2003 and for the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days Four-Quarter Period most recently ended prior to the Closing Date, (iE) all projected balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries prepared on a quarterly basis through December 31, 2004 and annually for the four fiscal years thereafter, (F) such other financial information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, information relating to the extent requested at least five Lehigh Acquisition as the Administrative Agent may reasonably request, and (5G) Business Days a Compliance Certificate for the Borrower and its subsidiaries, prepared as of the last day of the fiscal quarter most recently ended prior to the Closing Date, pro forma for the Lehigh Acquisition and (ii) to all prior acquisitions included in the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrowerrelevant period and the occurrence of the Closing Date;
(iix) All fees evidence of all insurance required by the Loan Documents on the Closing Date;
(x) a Revolving Loan Notice or Swing Line Revolving Loan Notice, or both, if any;
(xi) an initial Term Loan Interest Rate Selection Notice with respect to the Term Loan B Facility;
(xii) certified copies of each of the Lehigh Acquisition Documents (executed, if applicable), with all amendments thereto, each of which shall be paid in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall not have been paidamended, (ii) all fees required altered or otherwise changed or supplemented from the drafts thereof most recently delivered to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived reviewed by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to except as the Administrative Agent may consent (directly such consent not to such counsel if requested by the Administrative Agent) consistent with Section 11.04(abe unreasonably withheld);
(xiii) to the extent invoiced at least one not previously delivered in connection with the Existing Agreement, delivery of Uniform Commercial Code financing statements suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, including, if applicable, amendments to Uniform Commercial Code financing statements previously filed, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require, including without limitation the delivery by the Borrower of all documents required under Article IIA and certificates evidencing Pledged Interests, accompanied in each case by duly executed stock powers (1or other appropriate transfer documents) Business Day prior in blank affixed thereto;
(xiv) evidence of payment in full of all of the Lehigh Indebtedness not subject to the Closing DateLehigh Debt Assumption and/or Release, plus including payoff letters, UCC-3 Termination Statements, and all other evidence of cancellation of all liens and all such additional amounts Lehigh Indebtedness and termination of the related credit facilities as the Administrative Agent may request;
(xv) Uniform Commercial Code search results with respect to the Lehigh Companies showing only those Liens as are acceptable to the Lenders;
(xvi) to the extent not previously delivered in connection with the Existing Agreement, waivers with respect to the Collateral and such feesother matters as the Administrative Agent may require, charges in form and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or substance satisfactory to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent), executed by (A) the owner of each location required by the Administrative Agent leased by the Borrower or any Loan Party, and (B) the owner or operator, as applicable, of each location required by the Administrative Agent at which Collateral is located (including without limitation each independent warehouse) but which is neither owned nor leased by any Loan Party;
(exvii) The representations and warranties a certificate of the Borrowers and each chief financial officer or other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as Responsible Officer of the date Borrower, or such other Person as is permitted under the terms of the Closing DateSubordinated Indenture and the Subordinated Notes, except to certifying that the extent that such representations Obligations qualify as "Senior Debt" and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects "Designated Senior Debt" (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) each as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or defined in the aggregate, a Material Adverse EffectSubordinated Indenture);
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing
Appears in 1 contract
Sources: Credit Agreement (Jarden Corp)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party on behalf of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersArrangers:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes, evidencing the Committed Loans and the Term B Loans, as applicable;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise a Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered granting to the Administrative Agent, certificatesfor the benefit of the Lenders, if any, representing a first priority security interest in all of the Pledged Equity referred Collateral (other than the Excluded Collateral); and the Loan Parties shall have delivered to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings all UCC-1s in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral (other than the Non-Perfected Collateral) described in the Security Agreement; and
(iv) an pledge agreement in form and substance reasonably satisfactory to the Administrative Agent (the “Parent/Borrower Pledge Agreement”), executed by the Canadian Debentures Parent and the Canadian Debenture Pledge Agreements,
(C) copies Borrower granting to the Administrative Agent, for the benefit of each Luxembourg Loan Party’s shareholder register the Lenders, a first priority security interest in all of the issued and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as outstanding Equity Interests of a recent date with respect to the Borrower and each in the other Loan Party as of Collateral described therein; and the Closing Date,
(D) evidence of Parent and the completion of all other actions, recordings and filings of or with respect Borrower shall have delivered to the Security Agreement that the Administrative Agent all certificates, if any, evidencing such Equity Interests, all UCC-1s and all powers, duly endorsed in blank, with respect thereto, to the extent applicable; and the Parent and the Borrower shall have taken all such other actions as may deem be reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that required by the Administrative Agent may deem necessary or desirable to effect the grant and first priority perfection of the Administrative Agent’s security interest in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)such Equity Interests;
(viiv) a Canadian Security Confirmation duly an pledge agreement in form and substance reasonably satisfactory to the Administrative Agent (the “Subsidiary Pledge Agreement”), executed by each Canadian Loan PartyRestricted Subsidiary of the Parent and the Borrower necessary to pledge the Collateral described therein, for the benefit of the Lenders, a first priority security interest in all of the issued and outstanding Equity Interests of each Restricted Subsidiary owned by such Person; each such Restricted Subsidiary shall have delivered to the Administrative Agent all certificates, if any, evidencing such Equity Interests, all UCC-1s and all powers, duly endorsed in blank, with respect thereto; each such Restricted Subsidiary shall have taken all actions as may be required by the Administrative Agent to effect the grant and first priority perfection of the Administrative Agent’s security interest in such Equity Interests;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower of the Borrower, the Parent and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of (i) in-house counsel, (ii) Drinker ▇▇▇▇▇▇ and ▇▇▇▇▇ LLP and (iii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel (and FCC counsel) to the Loan Parties, each addressed to the Administrative Agent and each Lender, as and each in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) a certificate of a Financial Officer duly completed pro forma Compliance Certificate determined as of the US last day of the fiscal quarter of the Borrower attesting most recently ended prior to the Solvency of the US Borrower and the Restricted SubsidiariesClosing Date, on a consolidated basis, before and after but giving pro forma effect to the execution and delivery of the Loan Documents initial Credit Extension, and all Credit Extensions to be made other incurrence and repayments of Indebtedness on the Closing Datesame date or prior thereto;
(xxixii) the Audited Financial Statements substantially concurrent issuance of the Original Senior Notes in a face amount of not less than $220,000,000, and the Unaudited Quarterly Financial Statements;
(xxii) Senior Notes Indenture and the other Senior Notes Indenture Documents shall have been entered into, and on such other terms and conditions, and pursuant to the extent not previously provided or made available documentation, in each case acceptable to the Administrative Agent and each of the Lenders and substantially simultaneously with the execution of this Agreement;
(including pursuant to xiii) evidence that the Existing Credit Agreement), Agreement has been or concurrently with the Administrative Agent shall have received Closing Date is being terminated and all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which Liens securing obligations under the Existing Credit Agreement have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion concurrently with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsClosing Date are being released; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate invoice shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The Closing Date shall have occurred on or before December 31, 2011.
(e) The representations and warranties There shall not have occurred a material adverse change (i) in the business, assets, properties, liabilities (actual or contingent), operations or financial condition of the Borrowers Parent, the Borrower and each other Loan Party contained their Subsidiaries, taken as a whole, since December 31, 2010 or (ii) in Article V the facts and information regarding such entities as represented by the Parent, the Borrower or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality of their Subsidiaries, or Material Adverse Effect qualificationany representatives of any of them, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;.
(f) There has been no event The absence of any action, suit, investigation or circumstance since proceeding pending or, to the date actual knowledge of a member of the Audited Financial Statements executive management of the Parent, the Borrower or any of their Restricted Subsidiaries, threatened, in any court or before any arbitrator or Governmental Authority that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans have a material adverse effect on the business, assets, properties, liabilities (actual and Existing L/C Advances (if any) shall have been paid in full (contingent), operations or will be paid in full substantially concurrently with the closing of this Agreement as financial condition of the date hereof) (which payment mayParent, for the avoidance of doubtBorrower and their Subsidiaries, be made with the proceeds of taken as a Borrowing made under this Agreement on the Closing Date) and whole, (ii) materially and adversely affect the ability of the Borrower or any Guarantor to perform its obligations under any material provision of the Loan Documents or (iii) materially and adversely affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in accordance with Section 10.01 of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement"SECURITY AGREEMENT"), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the Borrower and each other jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) reasonable evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(E) with respect to any Loan Party's bank H accounts and securities accounts with Pershing LLC and with ▇▇▇▇▇ Fargo Bank, N.A. or their respective affiliates, the Account Control Agreements and the Securities Account Control Agreements, in each case referred to in the Security Agreement and duly executed by the appropriate parties,
(F) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, and
(EG) reasonable evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian Security Confirmation an intellectual property security agreement, in substantially the form of Exhibit I hereto (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Canadian Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower of the Borrower, Holdings and each Guarantor of their respective Subsidiaries is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, as to customary the matters set forth in Exhibit K-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivviii) a favorable opinion of (i) Boult, Cummings, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, PLC, local counsel to the Loan Parties in Canada Tennessee, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit K-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of Holdings, the US Borrower statements in which shall be true, certifying (A) that (1) the conditions specified representations and warranties of the Borrower and each other Loan Party contained in Sections 4.02(a) Article V or in any other Loan Document are true and correct in all material respects on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case as of such earlier date and (b2) have been satisfiedno Default exists or would result from the initial Credit Extension or the application of the proceeds thereof, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectEffect (other than payments of claims and transfers and distributions to the Leap Creditor Trust as contemplated by the Plan of Reorganization); (C) a calculation of the pro forma Consolidated Adjusted Leverage Ratio as of September 30, 2004 (giving pro forma effect to the Transaction) demonstrating that such pro forma ratio was not greater than 2.60:1.00 and (D) a calculation of Consolidated Adjusted EBITDA of the Company and its Subsidiaries for the twelve months ended September 30, 2004 demonstrating that such Consolidated Adjusted EBITDA was not less than $195,000,000;
(xxxi) a certificate of a Financial Officer of the US Borrower certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution Transaction, from its Chief Financial Officer;
(xii) such financial, business and delivery other information regarding each Loan Party and its Subsidiaries as the Lenders shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans and Multiemployer Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, 2003, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lenders' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the initial Credit Extension), an unaudited consolidated balance sheet of Holdings and its Subsidiaries as of July 31, 2004 giving effect to the transactions effected by the Plan of Reorganization, including without limitation asset revaluations or distributions and debt satisfactions and incurrences (certified by the Chief Financial Officer of Holdings), pro forma financial statements as to Holdings and forecasts prepared by management of Holdings, in form and substance satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the initial Credit Extension and on an annual basis for each year thereafter until the Maturity Date for the Term B Facility;
(xiii) a Committed Loan Documents and all Notice relating to the initial Credit Extensions Extension;
(xiv) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Holdings most recently ended prior to the Closing Date for which financial statements are available, which shall be made completed as though the Loans borrowed on the Closing Date had been incurred as of the first day of the four-quarter period covered by such Compliance Certificate, assuming that such Loans were Eurodollar Rate Loans and that the LIBO Rate applicable thereto was equal to a rate designated by the Administrative Agent to the Borrower as of the Closing Date, and as though the Existing Notes and the FCC Indebtedness had been repaid as of such date, signed by a Responsible Officer of Holdings;
(xxixv) reasonable evidence that the Audited Financial Statements indenture under which the Existing Notes were issued has been or concurrently with the Closing Date is being discharged in full and all Liens securing obligations under the Unaudited Quarterly Financial StatementsExisting Notes have been or concurrently with the Closing Date are being released;
(xxiixvi) to reasonable evidence that the extent not previously provided FCC Indebtedness has been or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion concurrently with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsClosing Date is being repaid in full; and
(xxiiixvii) evidence that such other assurances, certificates, documents, consents or opinions as any Agent, any L/C Issuer or any Lender reasonably may require.
(b) The Lenders shall be reasonably satisfied with the amount, types and terms and conditions of all insurance required to be maintained pursuant by Holdings and its subsidiaries; and, to the Loan Documents (including title insurance) has been obtained and is in effectextent available on a commercially reasonably basis, together with the certificates of insurance, Lenders shall have received endorsements naming the Administrative Agent, Agent or the Collateral Agent (as defined in the Security Agreement) on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;.
(xxivc) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form All accrued fees and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as expenses of the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
Joint Lead Arrangers and the Lenders (b) Each Lender shall have received, at least five (5) days prior to including the Closing Date, (i) all information requested by it pursuant to Section 11.19 fees and expenses of counsel for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and local counsel for the Joint Lead Arrangers Lenders) that are by their terms payable on or before prior to the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or extent that invoices in customary detail have been received by the Company not later than the second Business Day before the Closing Date.
(d) The Closing Date shall have been paidoccurred on or before January 10, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);2005.
(e) The representations and warranties of the Borrowers and each other There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party contained in Article V or any other Loan Document are true and correct in all material respects of its Subsidiaries pending or, to the knowledge of Holdings or the Borrower, threatened before any Governmental Authority or arbitrator that (except for such representations and warranties that i) could be reasonably likely to have a materiality or Material Adverse Effect qualification, which shall be true or (ii) purports to materially and correct in all respects) on and as of adversely affect the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;Transaction.
(f) There has All governmental authorizations and all third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any Governmental Authority, and no event or circumstance since Law shall be applicable in the date reasonable judgment of the Audited Financial Statements Lenders, in each case that has had restrains, prevents or could be reasonably expected imposes materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to havetransfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(g) The Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of Holdings and its subsidiaries and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as they shall have requested, and no changes or developments shall have occurred, and no new or additional information shall have been received or discovered by the Administrative Agent or the Lenders regarding Holdings and it Subsidiaries or the transaction after November 5, 2004 that (A) either individually or in the aggregateaggregate could reasonably be expected to have a Material Adverse Effect or (B) purports to adversely affect the Facilities or any other aspect of the Transaction, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, and (ii) that the Transaction will have a Material Adverse Effect;; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of Holdings and its Subsidiaries as they shall have requested.
(h) After giving effect to the Transaction, including all Credit Extensions made in connection therewith, there shall as of the Closing Date be no Revolving Credit Loans or L/C Obligations outstanding.
(i) The Existing Loans Lenders shall be satisfied with (i) the pro forma capital and Existing L/C Advances (if any) shall have been paid in full (ownership structure and the shareholder arrangements of Holdings and its Subsidiaries, including, without limitation, the charter and bylaws of Holdings and each such Subsidiary and each agreement or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment mayinstrument relating thereto, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) the amount, tenor, ranking and other terms and conditions of all other equity and debt financings comprising part of the Transaction. Without limiting the generality of the foregoing, no Indebtedness for borrowed money other than Indebtedness contemplated by the Plan of Reorganization shall be outstanding.
(j) The Administrative Agent shall be reasonably satisfied that the amount of committed financing available to Holdings and its Subsidiaries shall be sufficient to meet the ongoing financial needs of Holdings and its Subsidiaries after giving effect to the Transaction. The Lenders shall be reasonably satisfied with the amount, terms, conditions and holders of all intercompany Indebtedness and all indebtedness and other material liabilities owing to third parties to be outstanding on and after the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly an executed perfection certificate in the form provided by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(viiv) the Pledge and Security Agreement, Agreement duly executed by each Borrower and each GuarantorLoan Party, together with:
(A1) proper financing statements in form appropriate for filing under the UCC of all jurisdictions necessary in order to perfect in the United States the Liens in and to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, Collateral in which a security interest can be perfected by filing such financing statement;
(2) certificates representing the Pledged Equity referred to therein in the Pledge and Security Agreement accompanied by undated stock powers executed in blank or registered and instruments evidencing the Pledged Debt (as defined in the name of such nominee or nominees as the Administrative Agent shall specify Pledge and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Agreement) indorsed in blank,
(B3) proper completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (1) above that name any Loan Party as debtor, together with copies of such other financing statements, Personal Property Security Act financing statements or other filings in form appropriate and
(4) evidence of arrangements for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, completion of all jurisdictions other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken thereby (including receipt of duly executed payoff letters, letters and UCC-3 termination statements statements, in each case evidencing that the Borrower’s existing credit agreement has been, or concurrently with the Closing Date is being, terminated and Personal Property Security Act discharge verification statementsall Liens securing obligations under such existing credit agreement have been, or concurrently with the Closing Date are being, released);
(viiv) a Canadian Security Confirmation duly executed certificate of incumbency signed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions secretary or other action, incumbency certificates and/or other certificates of Responsible Officers assistant secretary of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) copies of each Loan Party’s Organization Documents, as amended, modified, or supplemented as of the Closing Date, certified by a Responsible Officer of such documents Loan Party and certifications as the Administrative Agent may reasonably require certificates of status with respect to evidence each Loan Party, such certificates indicating that each such Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where in which its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to duly qualified or licensed would have a Material Adverse Effect;
(xivii) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as substantially in the form of Exhibit M;
(viii) certificates of insurance evidencing that all insurance required to customary matters concerning be maintained by the Loan Parties and on the Closing Date pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as additional insured under each insurance policy with respect to such insurance as to which the Required Lenders may reasonably requestCollateral Agent shall have requested to be so named;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on Loan Parties (taken as a consolidated basis, before and whole) after giving effect to the execution and delivery Transactions, signed by the chief financial officer, chief accounting officer, treasurer or controller of the Loan Documents and all Credit Extensions to be made on the Closing DateBorrower;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxviixi) a Loan Notice for Form U-1 and a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as Form G-3 appropriately completed by the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.Borrower;
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 fees and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees expenses required to be paid to the Administrative Agent hereunder and the Joint Lead Arrangers on or invoiced before the Closing Date shall have been paid, ;
(iic) all fees and expenses required to be paid to the Lenders on or before Agents as separately agreed in writing between the Closing Date shall have been paid, Borrower and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements theretoapplicable Agent(s) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers Intercreditor Agreement shall have paid all feesbeen duly executed and delivered by each party thereto, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges shall be in full force and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);effect; and
(e) The representations and warranties the Administrative Agent shall have received satisfactory evidence that more than fifty percent of the Borrowers aggregate principal amount of Holdco Loans outstanding and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as not less than $249,000,000 of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Senior Notes shall have been paid in full purchased (or will shall be paid in full purchased substantially concurrently with the closing initial funding hereunder) by the Borrower or its Subsidiaries. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01 each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Targa Resources Investments Inc.)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]a Guaranty executed by each Material Subsidiary;
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the a Security Agreement, duly executed by each Borrower and each GuarantorMaterial Subsidiary, together with:
(A) to the extent required thereby and under the Security Agreement certificates representing the pledged Equity Interests referred to therein which certificates should not previously delivered contain any restrictions on transfer not acceptable to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein and accompanied by undated stock powers executed in blank or registered and instruments evidencing the pledged Indebtedness (if any) in an amount in excess of $500,000 in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed aggregate endorsed in blank,, and
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,.
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;; AMENDED AND RESTATED CREDIT AGREEMENT — Page 57
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xivii) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of evidence that the Borrower’s and each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Guarantor’s Organization Documents (including, without limitation, a copy of contain no restrictions prohibiting the up-to-date articles of incorporation Borrower or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Guarantor from executing any Loan Documents to which such Luxembourg Loan Party Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedingsparty;
(xiiviii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate evidence that all restrictions on transfer of an authorized signatory any Equity Interest of each Subsidiary contained in such Subsidiary’s Organization Documents, voting rights, warrant, option, or similar agreement related to such entity dated as of the date of this Agreement are waived or modified in form and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as substance satisfactory to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse EffectRequired Lenders;
(xiiiix) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP▇ L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivx) a favorable opinion of (i) local Taylor, Porter, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., special Louisiana counsel to the Loan Parties in Canada addressed to the Administrative Agent Borrower, Crosstex LIG, LLC, Crosstex LIG Liquids, LLC and each LenderCrosstex Tuscaloosa, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestLLC;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements not otherwise disclosed by the Borrower in a public filing that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxiii) a certificate duly completed pro forma Compliance Certificate as of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower December 31, 2009, in form and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available substance acceptable to the Administrative Agent (including giving pro forma effect to the notes to be issued pursuant to the Existing Credit Agreement)Indenture, the 2010 Equity Issuance, the East Texas Sale, and the Intra-coastal Acquisition signed by a Responsible Officer of the Borrower;
(xiv) results of lien, tax, judgment and UCC searches in the secretary of state of each jurisdiction of organization of each Loan Party and applicable counties as reasonably determined by the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating from a source acceptable to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and reflecting no Liens against any of the Collateral as to which perfection of a Lien is accomplished by the filing of a financing statement other than in favor of the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; andLiens permitted by Section 7.01;
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, effect together with the certificates of insurance, insurance naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvxvi) evidence that of the Canadian Borrower has complied with Section 11.15(d);
consummation, extension and issuance of the (xxviA) endorsements notes to existing title insurance policies with respect be issued pursuant to the Mortgages Indenture (which notes may be issued contemporaneously with the closing of this Agreement) and (B) the 2010 Equity Issuance, in form and substance satisfactory to the Administrative Agent, the Arranger and the Lenders and the combined gross proceeds shall not be less than $650,000,000;
(xxviixvii) a Loan Notice for a Borrowingpro forma balance sheets of the Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent and the Lenders; and
(xxviiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuer or the Swing Line Lender or any Lender Required Lenders reasonably may require.
(b) Each Lender The Lenders shall have receivedcompleted a due diligence investigation of the Loan Parties’ respective assets which constitute Collateral and financial condition in scope, at least five (5) days prior and with results, reasonably satisfactory to the Closing DateLenders, and shall have been given such access to the management, records, books of account, properties and contracts of the Loan Parties and shall have received such financial and business information regarding each of the Loan Parties and businesses as shall have been reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreement and other arrangements with employees, the Audited Financial Statements, interim financial statements of the Borrower and its Subsidiaries dated the end of the most recent fiscal quarter for which financial statements are available and the Borrower’s financial projections covering the term of this Agreement.
(c) All of the Borrower’s senior notes issued under the Note Agreement (as defined in the Existing Credit Agreement) shall have been repaid in full prior to, or contemporaneously with, the closing of this Agreement.
(d) After taking into account the initial Credit Extension, the Borrower shall have not less than $75,000,000 of combined availability under the Aggregate Commitments and cash on hand.
(e) All of the information provided (other than projections) to the Administrative Agent and the Lenders shall be complete and correct in all material respects, no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding the Borrower or its Subsidiaries or the transactions contemplated hereby, after the date such due diligence investigation has been completed that (i) all information requested by it pursuant either individually or in the aggregate, could reasonably be expected to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and have a Material Adverse Effect or (ii) purports to materially adversely affect this Agreement or any other aspect of the transactions contemplated thereby, and nothing shall have come to the extent requested by such Lenderattention of the Lenders to lead them to reasonably believe that (A) the information memorandum was or has become misleading, incorrect or incomplete in any material respect or (B) transactions contemplated hereby will have a Beneficial Ownership Certification in relation to each Borrower;Material Adverse Effect.
(f) (i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees and expenses (other than fees and expenses of any counsel for any Lender) required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect in each case, pursuant to the Mortgages (or any amendments or supplements thereto) shall have been paid;Fee Letter and the commitment letter described therein.
(dg) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent, except to the extent such conditions are subject to the Post-Closing Agreement:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies copies in .pdf format (or other electronic imaging format acceptable to the Administrative Agent, in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes executed counterparts of the Guaranty, sufficient in number for distribution to the Administrative Agent and the Borrower;
(iii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments executed counterparts of the Securities Pledge Agreement, sufficient in number for distribution to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise the Borrower, together with certificates representing the Securities Collateral referred to therein accompanied by undated transfer powers executed in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreementblank;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) counterparts of the Security Agreement, duly executed by each Borrower sufficient in number for distribution to the Administrative Agent and each Guarantorthe Borrowers, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing instruments evidencing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed Debt endorsed in blank,;
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,;
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements;
(D) Deposit Account Control Agreements with respect to each Luxembourg Control Account that is a deposit account, duly executed by each of the parties thereto;
(E) Securities Account Control Agreements with respect to each Control Account that is a securities account, duly executed by each of the parties thereto;
(F) each Perfection Certificate delivered by a Loan Party’s shareholder register Party (or the Loan Parties) in connection with the Security Agreement;
(G) evidence that the Borrower and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date the Guarantors shall have taken such action with respect to the Borrower and each other Loan Party BioThrax Contract under the Federal Assignment of Claims Act of 1940, 31 U.S.C. 3727, 41 U.S.C. 15, as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem shall reasonably necessary or reasonably desirable in order request, such that all payments under the BioThrax Contract are validly assigned to perfect the Liens created therebyAdministrative Agent, for the benefit of the Secured Parties; and
(EH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and, with respect to leasehold premises which constitute a chief executive office and Personal Property Security Act discharge verification statementswith respect to leasehold premises or warehouses where material Collateral is located, landlords' and bailees' waiver and consent agreements);
(viivi) a Canadian Security Confirmation Mortgage covering each Mortgaged Property, duly executed executed, acknowledged and delivered by the appropriate Loan Party in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary in order to create a valid first priority and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties, together with:
(A) evidence that all filing, documentary, stamp, intangible and recording taxes and fees have been paid; and
(B) each Canadian Loan Partyother Related Real Estate Document;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor of the Loan Parties is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could would not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiix) a favorable customary opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Required Administrative Agent and the Lenders may shall reasonably request;
(xivx) a favorable opinion executed counterparts of (i) local counsel to the Loan Parties Post-Closing Agreement, sufficient in Canada addressed number for distribution to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestBorrower;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of Liquidity and the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date (giving pro forma effect to the transactions contemplated under this Agreement, the Credit Extensions on the Closing Date, and the repayment (or, at the election of the Administrative Agent, assignment to the Administrative Agent for the benefit of the Lenders) of Specified Indebtedness on the Closing Date);
(xxxiii) a certificate of a Financial Officer the chief financial officer of the US Borrower attesting to the Solvency of the US Borrower, individually, and the Borrower and the Restricted its Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Datetransactions contemplated under this Agreement;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiv) evidence that all insurance (including, without limitation, any required flood insurance) required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender lender's loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateralconstitutes Collateral and (y) the Lenders shall be reasonably satisfied with the amount, types and terms and conditions of all such insurance maintained by the Loan Parties;
(xxiv) [Reserved];
(xxvxv) evidence that all Specified Indebtedness of the Canadian Borrower Loan Parties has complied been or concurrently with Section 11.15(d);
the Closing Date is being terminated and repaid (xxvi) endorsements to existing title insurance policies with respect to or, at the Mortgages in form and substance satisfactory election of the Administrative Agent, assigned to the Administrative Agent for the benefit of the Lenders) and all Liens securing any such Specified Indebtedness have been or concurrently with the Closing Date are being released (or, at the election of the Administrative Agent;
(xxvii) a Loan Notice , assigned to the Administrative Agent for a Borrowingthe benefit of the Lenders); and
(xxviiixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Arrangers and the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all the reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced on a date at least one (1) 2 Business Day Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The Administrative Agent and the Lenders shall have received, and shall be reasonably satisfied with (x) the pro forma consolidated financial statements as to the Borrower and its Subsidiaries prepared in connection with the transactions (including the Target Acquisition) contemplated hereby and (y) a Compliance Certificate (the "Closing Date Compliance Certificate"), demonstrating compliance on a pro forma basis, after giving effect to the transactions contemplated on the Closing Date, with each financial covenant set forth in Section 7.11 as of the end of the most recently ended fiscal quarter prior to the Closing Date.
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;[Reserved].
(f) [Reserved].
(i) There has been shall be no event actions, suits, investigations or circumstance since the date proceedings pending at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any Subsidiary of the Audited Financial Statements any Loan Party or against any of their properties or revenues that has had or could be reasonably expected to have, either individually or in the aggregate, if determined adversely, would reasonably be expected to have a Material Adverse Effect;Effect and (ii) no Loan Party nor any Subsidiary of a Loan Party shall have received any notice of default under any Material Contract.
(h) The Administrative Agent and the Lenders shall have completed a due diligence investigation of the Target Acquisition and the transactions contemplated thereby (including, without limitation, a review of a draft quality of earnings report prepared by Ernst & Young with respect to Target and its Subsidiaries).
(i) The Existing Loans Administrative Agent and Existing L/C Advances (if any) the Lenders shall have been paid in full (or will received a true and correct copy of, and shall be paid in full substantially concurrently reasonably satisfied with the closing terms and conditions of, a final form of the Target Acquisition Agreement delivered to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. (a) The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(ai) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (and, in the case of this Agreement, by each Lender), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:):
(iii) executed counterparts of this Agreement and the Guaranty;
(iiiii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note, with such requests provided to the Company at least two Business Days prior to the Closing Date;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Securities (if any) referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Intercompany Notes indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem are necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy judgment lien searches, in bankruptcy and pending lawsuit searches or equivalent reports or searches, each case, dated as of a recent date with respect listing all effective financing statements, lien notices or comparable documents that name any Loan Party or Qualified Subsidiary as debtor and that are filed in those state and county jurisdictions in which any Loan Party or Qualified Subsidiary is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted by Section 7.01 or any other Liens acceptable to the Borrower and each other Loan Party as of the Closing Date,Administrative Agent), and
(D) evidence a fully executed Perfection Certificate substantially in the form of Exhibit I
(v) a Solvency Certificate in the form of Exhibit K shall have been executed and delivered by the chief financial officer of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)Borrower;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor its Subsidiaries is validly existing, in good standing and qualified to engage in business in its the jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of Simpson, Thacher & B▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, LLP counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivix) a favorable opinion of (i) M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, local counsel to the Loan Parties in Canada Texas, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvx) a favorable opinion of local counsel to the Loan Parties financial statements referenced in Luxembourg addressed to the Administrative Agent Section 5.05(a) and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request(d);
(xvixi) a favorable opinion of local counsel to the Intercreditor Agreement, fully executed by the trustee for the Senior Secured Notes, the Administrative Agent, and acknowledged by the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;Parties; and
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with Borrower as to the execution, delivery and performance by such Loan Party and the validity against such Loan Party satisfaction of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified set forth in Sections 4.02(a4.01(e), (f), (g) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreementj), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paidpaid to the extent then invoiced, with such invoices provided to the Company at least two Business Days prior to the Closing Date and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each Lender and each L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing each Loan PartyParty (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, in such number as requested by Administrative Agent;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote (which, to the extent delivered via e-mail (in a .pdf format) or telecopies, shall be followed promptly by originals);
(iii) [Reserved.]executed counterparts of the Collateral Assignment Agreement executed by each Assignor in favor of the Administrative Agent, in such number as requested by Administrative Agent;
(iv) amendments (y) the certificates (if any) representing the Equity Interests pledged pursuant to the Collateral Assignment Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the Assignor thereof and reaffirmations of Mortgages, duly executed (z) each document (including any Uniform Commercial Code financing statement) required by the applicable Loan Party and Collateral Assignment Agreement or under law or reasonably requested by the Administrative Agent and otherwise to be filed, registered or recorded in form and substance reasonably satisfactory order to create in favor of the Administrative Agent, amending such terms for the benefit of itself and provisions of the Mortgages to reflect Lenders, a perfected first priority Lien on the effectiveness of this Agreementcollateral;
(v) mortgage tax affidavits or amendments a Disbursement and Rate Management Authorization and Instruction Agreement, if, and as, required by Administrative Agent and all other Loan Documents to mortgage tax affidavits, as applicable, duly be executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each the Loan Party Parties as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such a Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower each Loan Party certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2017 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) a certificate of a Financial Officer of Solvency Certificate from the US Borrower attesting certifying that, after giving effect to the Solvency of transactions to occur on the US Borrower Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Combined Companies, taken as a whole and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Dateare Solvent;
(xxixii) a duly completed Compliance Certificate calculated on a Pro Forma Basis for the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement)Combined Companies’ fiscal quarter ending December 31, the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect2017, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect backup documentation acceptable to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxviixiii) a Loan Notice for a Borrowing; andthe financial statements referenced in Section 5.05(a);
(xxviiixiv) such other assurances, certificates, documents, consents additional customary assurances or opinions certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent, any the L/C Issuer, Issuers or the Swing Line Lender or any Lender Required Lenders reasonably may require.; and
(bxv) Each the Administrative Agent and each Lender shall have received, at least five (5) days prior received all documentation and other information that the Administrative Agent or such Lender requests in order to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance comply with other its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, to including the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Patriot Act.
(ib) All fees required hereunder or under the Fee Letter to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of ▇▇▇▇▇ Day and ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, in each case, outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced (which invoice may be in summary form) at least one two (12) Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) To the extent that any Project is not included in the pool of Qualified Unencumbered Properties prior to the Closing Date, any Project to be added on the Closing Date shall have satisfied the requirements of Section 6.12(a).
(e) The representations and warranties All obligations outstanding under the Existing Credit Agreement shall be concurrently paid in full. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received written notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Modification Agreement (Cim Real Estate Finance Trust, Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial any Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedentprecedent at or substantially simultaneously with the making of such Credit Extension:
(a) The Administrative Agent’s receipt Agent shall have received each of the following, each of which shall be originals or telecopies facsimiles or Adobe PDFs delivered by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyObligor, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) i. executed counterparts of this Agreement and the Guaranty;Guarantee and Security Agreement; and
(ii) Notes . a Note executed by the Borrowers Company in favor of each Lender requesting that has requested a NoteNote at least three Business Days prior to the Closing Date;
(iiib) [Reserved.]The Agent shall have received:
(iv) amendments i. copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Obligor authorizing the Transactions to and reaffirmations which such Obligor is a party, certified as of Mortgages, duly executed the Closing Date by the applicable Loan Party and Secretary or an Assistant Secretary of such Obligor (or in the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agentcase of a limited liability company, amending such terms and provisions of its manager);
ii. a certificate of the Mortgages Secretary or Assistant Secretary of each Obligor (or in the case of a limited liability company, of its manager) certifying the names and true signatures of the officers of such Obligor authorized to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavitsexecute, deliver and perform, as applicable, duly executed this Agreement and all other Loan Documents to be delivered by such Obligor hereunder;
iii. the articles or certificate of incorporation or equivalent document of each Obligor as in effect on the Closing Date, certified by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative AgentSecretary of State of its state of incorporation or organization as of a recent date;
iv. the bylaws or equivalent document of each Obligor as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of such Obligor as of the Closing Date; and
v. a certificate of good standing or equivalent document for each Obligor from the Secretary of State (vior similar, applicable Governmental Authority) the Security Agreement, duly executed by each Borrower and each Guarantor, together withof its state of incorporation or organization as of a recent date.
(c) The Agent shall have received:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, i. certificates representing the Pledged Equity referred to therein (as defined in the Guarantee and Security Agreement) that constitutes certificated securities (as defined in the Uniform Commercial Code) accompanied by undated stock powers executed in blank or registered and instruments evidencing the Pledged Debt (as defined in the name of such nominee or nominees as Guarantee and Security Agreement) indorsed in blank to the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged extent required by the Loan Parties pursuant Guarantee and Security Agreement; provided that such certificates and undated stock powers that are in the possession of the agent under the Existing Credit Agreement immediately prior to the Security Agreement indorsed in blank,Closing Date shall be deemed to have been transferred to the Agent (and shall be deemed to be held by the Agent) as of the Closing Date;
(B) proper financing statements, Personal Property Security Act ii. financing statements or other filings in form appropriate for filing, duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Guarantee and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Guarantee and Security Agreement, ;
iii. filings in form appropriate for filing with the Canadian Debentures United States Patent and Trademark Office and United States Copyright Office (if applicable) together with evidence that all action that the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Agent may deem necessary in order to perfect the Liens created under the Intellectual Property Security Act, federal Agreement (as defined in the Guarantee and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of Security Agreement) has been taken or will be taken promptly after the Closing Date,;
(D) iv. evidence of the completion of, or of arrangements reasonably satisfactory to the Agent for the completion of, all other actions, recordings and filings of or with respect to the Guarantee and Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, ; and
(E) v. evidence that reasonably acceptable to the Agent of payment or arrangements for payment by the Obligors of all other action that applicable recording taxes, fees, charges, costs and expenses required for the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under recording of the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);Documents.
(viid) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative The Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to shall have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, received a certificate of an authorized signatory compliance for each Insurance Subsidiary from the Wisconsin Office of each such entity the Commissioner of Insurance, dated as of a recent date.
(e) The Agent shall have received a written opinion, reasonably acceptable to the date of this Agreement Agent in form and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificatesubstance, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as addressed to the incumbency Agent and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity Lenders and dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date) from each of (i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Obligors and (Gii) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, Delaware counsel for the Obligors.
(f) The Agent shall have been paid all accrued and unpaid fees, and reasonable costs and expenses to the Loan Parties, addressed extent then due and payable to the Administrative Agent on or before the Closing Date, including accrued and each Lender, as projected Attorney Costs of the Agent to customary matters concerning the Loan Parties and extent invoiced two (2) Business Days prior to the Loan Documents as the Required Lenders may reasonably request;Closing Date.
(xivg) a favorable opinion of The Agent shall have received (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer on behalf of the US Borrower Company, dated as of the Closing Date, certifying (A) that as to the conditions specified matters set forth in Sections 4.02(a4.01(i) and (b) have been satisfied4.01(j), and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxii) a solvency certificate of a executed by the Chief Financial Officer of the US Borrower attesting Company, substantially in the form of Exhibit H.
(h) The Company and each of the Subsidiary Guarantors shall have provided the documentation and other information to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance are required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, by regulatory authorities under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested the Company shall have received written requests therefor at least five ten (510) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party Company contained in Article V 5 or any other Loan Document Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, (x) which are not qualified as to materiality shall be true and correct in all material respects and (except for such representations and warranties that have a y) which are qualified as to materiality or Material Adverse Effect qualification, which shall be true and correct correct, in all respects) each case, on and as of the date of the Closing Date, after giving effect to such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality respects, or Material Adverse Effect qualification, which shall be true and correct in all respects) correct, as the case may be, as of such earlier date;.
(fj) There has been no event No Default or circumstance since the date Event of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Default shall have been paid in full (occurred and be continuing on such date immediately before or will be paid in full substantially concurrently with after giving effect to the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement proposed Credit Extension on the Closing Date.
(k) The Company shall have delivered to the Agent the financial statements referred to in Sections 5.11(a) and (iib) each hereto.
(l) The refinancing of all outstanding indebtedness under the Existing Lender (including each Exiting Lender) Credit Agreement shall have been paid (consummated prior to, or will shall be paid consummated substantially concurrently with, the initial Credit Extension under the Facilities and, to the extent applicable, all security interests, commitments and guarantees relating thereto shall have been or shall be substantially concurrently terminated and released.
(m) The Agent shall have received a Loan Notice in accordance with the closing of this Agreement on the date requirements hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the GuarantyPerfection Certificate;
(ii) Notes executed by the Borrowers each Borrower in favor of each Lender requesting a NoteNotes;
(iii) [Reserved.]
a pledge and security agreement, in substantially the form of Exhibit F (iv) amendments together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.13 , in each case as amended, the “ Security Agreement ”), duly executed by the applicable Loan Party Company and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions each of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorGuarantors listed on Schedule G-1 that is a Domestic Subsidiary, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,and
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the Borrower and each other jurisdictions referred to in clause (B) above that name any Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect that is a party to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyas debtor, and
(E) evidence that all together with copies of such other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification financing statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require (but only to the extent such concepts exist under applicable law) to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor (other than Herbalife Taiwan) is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xivi) with respect favorable opinions of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇, special counsel to any Luxembourg the Loan PartyParties, a certificate in substantially the form of an authorized signatory Exhibit J-1 , M▇▇▇▇▇ and Calder, special Cayman Islands counsel to the Loan Parties, in substantially the form of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments theretoExhibit J-2 , of each such entity) of each such entity as in effect on the date of that certificateA▇▇▇▇▇ & M▇▇▇▇▇▇▇▇, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of special Luxembourg counsel to the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modifiedParties, rescinded or amended and are in full force and effect, (C) as to substantially the incumbency and specimen signature form of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing DateExhibit J-3 , and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇▇▇▇ & Hyatt F▇▇▇▇▇ S▇▇▇▇▇▇, LLP, special Nevada counsel to the Loan Parties, in substantially the form of Exhibit J-4 , each addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party Holdings either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower Holdings certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsatisfied (other than any such conditions as are subject to the judgment or discretion of the Administrative Agent or any Lender), and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
Effect and (xxC) a certificate of a Financial Officer calculation of the US Borrower attesting to the Solvency Consolidated Total Leverage Ratio as of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery last day of the Loan Documents and all Credit Extensions fiscal quarter of the Company most recently ended prior to be made on the Closing Date;
(xxiix) a duly completed Compliance Certificate as of the Audited Financial Statements and last day of the Unaudited Quarterly Financial Statementsfiscal quarter of the Company ended on December 31, 2010, signed by a Responsible Officer of the Company;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiix) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;; and
(xxiv) [Reserved];
(xxvxi) evidence that the Canadian Borrower Existing Credit Agreement has complied been or concurrently with Section 11.15(d);
(xxvi) endorsements the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been, concurrently with the Closing Date are being, or provision being provided therefor to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurancesbe, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may requirereleased.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Company shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before March 31, 2011. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be either originals or telecopies (or electronic copies, followed in either case promptly by originals) , unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyOperating Company;
(ii) Notes an amended and restated Revolving Credit Note and an amended and restated Acquisition Note executed by the Borrowers in favor of each Lender requesting a NoteLender;
(iii) [Reserved.]
(iv) amendments to the Pledge Agreement and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, each duly executed by each Borrower and each GuarantorCredit Party, together with:
(A) , to the extent required thereby and in each case not previously delivered to the Administrative Agent, certificates, if any, :
(A) certificates representing the any Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instrumentsinstruments evidencing the Pledged Debt indorsed in blank, if any, evidencing any Indebtedness pledged by to the Loan Parties extent not previously delivered to the Administrative Agent pursuant to the Security Agreement indorsed in blankExisting Credit Agreement,
(B) stamped receipt copies of proper financing statements, Personal Property Security Act financing statements duly filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, to the Canadian Debentures and extent not previously received by the Canadian Debenture Pledge AgreementsAdministrative Agent pursuant to the Existing Credit Agreement,
(C) copies completed UCC lien search requests, dated through a date not earlier than forty-five (45) days prior to the date of each Luxembourg Loan Party’s shareholder register the initial Credit Extension, for such Credit Parties as may be agreed to between the Borrowers and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searchesthe Administrative Agent, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Dateits reasonable discretion,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent any Lender may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Documents has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(viiiv) a Canadian Security Confirmation amended and restated Mortgages, amending and restating each of the existing mortgages (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) delivered under the Original Credit Agreement or the Existing Credit Agreement, and covering the properties identified on Schedules 5.08(c), (d)(i) and (d)(ii) which are legally permitted to be mortgaged, each duly executed by the appropriate Credit Party, together with:
(A) evidence that counterparts of each Canadian Loan Partyof such amended and restated Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create, together with the existing Mortgages, a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) modifications to the Mortgage Policies, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring such amended and restated Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Credit Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Credit Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property), affidavits of no change with respect to surveys and such other documents as the Administrative Agent or title insurer may deem necessary or desirable, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in such amended and restated Mortgages has been taken, subject only to Permitted Encumbrances;
(viiiv) an officer’s certificate (A) either (1) attaching a certified copy of each Credit Party’s Organizational Documents or (2) certifying that no changes have been made to the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
copies delivered under the Existing Credit Agreement, (ixB) such certificates of attaching resolutions or other actionauthorizing the Transaction, each, in form and substance satisfactory to the Administrative Agent, and (C) attaching incumbency certificates and/or other certificates of Responsible Officers of each Loan Credit Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Credit Documents to which such Loan Credit Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each Borrower and each Guarantor Credit Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of incorporation or organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPBlank Rome, counsel to the Loan Credit Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Required Lenders may reasonably request;
(xivviii) a favorable opinion of (i) each local counsel to the Loan Parties in Canada Credit Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2010, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) all materials and information provided to the Lenders by the Credit Parties in connection with the Transaction was, at the time provided, and continues to be complete and correct in all material respects as of the Closing Date; and (D) either (1) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Credit Party of the Transaction and the execution, delivery and performance by such Credit Party and the validity against such Credit Party of the Credit Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (2) stating that no such consents, licenses or approvals are so required;
(xxx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws[Reserved]; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;[Reserved].
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each Lender and each L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing each Loan PartyParty (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, in such number as requested by Administrative Agent;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote (which, to the extent delivered via e-mail (in a .pdf format) or telecopies, shall be followed promptly by originals);
(iii) [Reserved.]executed counterparts of the Collateral Assignment Agreement executed by each Assignor in favor of the Administrative Agent, in such number as requested by Administrative Agent;
(iv) amendments (y) the certificates (if any) representing the Equity Interests pledged pursuant to the Collateral Assignment Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the Assignor thereof and reaffirmations of Mortgages, duly executed (z) each document (including any Uniform Commercial Code financing statement) required by the applicable Loan Party and Collateral Assignment Agreement or under law or reasonably requested by the Administrative Agent and otherwise to be filed, registered or recorded in form and substance reasonably satisfactory order to create in favor of the Administrative Agent, amending such terms for the benefit of itself and provisions of the Mortgages to reflect Lenders, a perfected first priority Lien on the effectiveness of this Agreementcollateral;
(v) mortgage tax affidavits or amendments a Disbursement and Rate Management Authorization and Instruction Agreement, if, and as, required by Administrative Agent and all other Loan Documents to mortgage tax affidavits, as applicable, duly be executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each the Loan Party Parties as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such a Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower each Loan Party certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2017 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) a certificate of a Financial Officer of Solvency Certificate from the US Borrower attesting certifying that, after giving effect to the Solvency of transactions to occur on the US Borrower Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Combined Companies, taken as a whole and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Dateare Solvent;
(xxixii) a duly completed Compliance Certificate calculated on a Pro Forma Basis for the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement)Combined Companies’ fiscal quarter ending December 31, the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect2017, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect backup documentation acceptable to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxviixiii) a Loan Notice for a Borrowing; andthe financial statements referenced in Section 5.05(a);
(xxviiixiv) such other assurances, certificates, documents, consents additional customary assurances or opinions certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent, any the L/C Issuer, Issuers or the Swing Line Lender or any Lender Required Lenders reasonably may require.; and
(bxv) Each the Administrative Agent and each Lender shall have received, at least five (5) days prior received all documentation and other information that the Administrative Agent or such Lender requests in order to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance comply with other its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, to including the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Patriot Act.
(ib) All fees required hereunder or under the Fee Letter to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of ▇▇▇▇▇ Day and ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, in each case, outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced (which invoice may be in summary form) at least one two (12) Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) To the extent that any Project is not included in the pool of Qualified Unencumbered Properties prior to the Closing Date, any Project to be added on the Closing Date shall have satisfied the requirements of Section 6.12(a).
(e) The representations and warranties All obligations outstanding under the Existing Credit Agreement shall be concurrently paid in full. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received written notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Cole Credit Property Trust V, Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agents of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agents and each of the Lenderstheir legal counsel:
(i) executed counterparts of this Agreement, executed by the Borrower, each Guarantor, each Agent and (subject to Section 11.21) each Lender (and any Revolving Credit Lender under and as defined in the Existing DHI Credit Agreement that is not a Revolving Credit Lender hereunder shall have confirmed the termination of its commitment under the Existing DHI Credit Agreement and the Guarantyrepayment of all amounts owing to it thereunder);
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, Agreement duly executed by each Borrower and each Guarantorparty thereto, together with:
(A) to the extent required thereby and not previously delivered to the Administrative AgentCollateral Trustees, certificates, if any, certificates representing the Pledged Equity referred to therein (and as defined) in the Security Agreement accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees Pledged Debt referred to (and as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement defined) therein indorsed in blank,
(B) to the extent not already duly filed pursuant to the Existing DHI Credit Agreement or as requested by the Administrative Agent, proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent Agents may deem necessary or desirable in order to perfect the Liens first (other than any Permitted Liens) priority liens and security interests created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements Agreement covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies evidence of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, insurance in each case, dated effect as of a recent date the Closing Date with respect to the Borrower and each other Loan Party its Restricted Subsidiaries as described on Schedule 4.01(a)(iii)(C) (it being understood that the delivery of such evidence is a condition precedent under this Section 4.01 only and that the Borrower’s obligation to maintain insurance from and after the Closing DateDate shall be governed by Section 6.07),
(D) evidence of the completion of all other actions, recordings and filings of or with respect amendments to the Security Agreement that Control Agreements and Account Control Agreements referred to in the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect Security Agreement, duly executed by the Liens created therebyrelevant securities intermediary and depositary banks, as necessary, and
(E) evidence that all other action that the Administrative Agent Agents may reasonably deem necessary or desirable in order to perfect the Liens first (other than any Permitted Liens) priority liens and security interests created under the Security Agreement has been taken commenced (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementsother than the filings referred to in clause (B) above);
(viiiv) a Canadian Security Confirmation supplements (the “Mortgage Supplements”) to the Mortgages set forth on Schedule 4.01(a)(iv), substantially in the form of Exhibit G (with such changes as may be required to account for local law matters), duly executed by each Canadian the appropriate Loan Party, together with:
(A) delivery of the Mortgage Supplements in the appropriate form for filing or recording in order to continue a valid first and subsisting Lien, subject only to (i) Permitted Encumbrances (as defined in the Mortgages) and (ii) Permitted Liens, in each case on the property described therein, in favor of the Collateral Trustees, for the benefit of the appropriate Secured Parties and reasonable evidence that all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees required to be paid in connection with the filing or recording of such Mortgage Supplements shall be paid;
(viiiB) regarding all Real Property for which Mortgages were obtained in connection with the Existing DHI Credit Agreement, (i) evidence in the form of updated title searches, title reports or “abstractor” certificates, “title” certificates or so-called “nothing further” certificates, as applicable, reasonably sufficient to determine whether each Loan Party and each of its Subsidiaries required to execute and deliver a Mortgage Supplement pursuant to this Agreement has good title in fee simple to, or valid leasehold interests in, all Collateral covered by the Mortgages (other than the properties comprised of “pipelines” or “gathering systems”) and (ii) a modification/date-down endorsement to each existing Mortgage Policy extending the effective date of the policy to the date of recording for the applicable Mortgage Supplement and insuring that that the modification of the insured mortgage does not impair the validity, enforceability or priority of the insured mortgage, as modified; and
(C) such other documents as may be reasonably necessary to record the Mortgage Supplements, to issue the modification/date-down endorsements, or to create, perfect or preserve the security interests granted by the Mortgages or the Mortgage Supplements;
(v) the Luxembourg Security Confirmation Collateral Trust Agreement, duly executed by each Luxembourg Loan Partythe parties thereto;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or assistant secretary of each Loan Party as the Administrative Agent Agents may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agents;
(xivix) a favorable opinion of (i) appropriate local counsel to the Loan Parties in Canada the jurisdictions set forth in Schedule 4.01(a), addressed to the Administrative each Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgents;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bc) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lenders shall have requested, including, without limitation, information as to obligations under Pension Plans, Multiemployer Plans (to the knowledge of any Loan Party), collective bargaining agreements and other arrangements with employees;
(xii) a certificate of a Financial Officer of the US Borrower attesting Request for Credit Extension relating to the Solvency of initial Credit Extension, provided that any such Request for Credit Extension that selects the US Borrower and Eurodollar Rate for the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made hereunder on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent Date shall have been so received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ by 12:00 noon (or their respective predecessors’eastern time) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) three Business Days prior to the Closing Date, together with one or more written indemnities in form and (ii) substance satisfactory to the extent Payment Agent obligating the Borrower to compensate the Lenders for losses, costs and expenses of the type described in Section 3.05 that may be incurred by them in the event such Credit Extensions are not made on the date requested in such Request for Credit Extension;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying, as of the Closing Date, that there exists no “Principal Property” (as defined in, and for purposes of Section 10.06 of, the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) and the Liens on the Collateral securing the Secured Obligations are otherwise permitted under the terms of all agreements and instruments to which the Parent Companies or the Parent Subsidiary Guarantors or the Borrower or any of its Subsidiaries is a party, including, without limitation, the Indentures;
(xiv) the Borrower shall have entered into such Lendercash collateral account agreements with respect to the Term L/C Collateral Account (and control agreements relating thereto) as the Collateral Agent shall request, a Beneficial Ownership Certification each in relation form and substance satisfactory to each Borrower;the Collateral Agent, and the Borrower shall have funded the Term L/C Collateral Account in the amount required by Section 2.03(k) as of the Closing Date; and
(xv) such other collateral documents as the Administrative Agents may reasonably request.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before extent that written invoices have been provided, all costs and expenses of the Closing Date Agents shall have been paid, paid and (iii) all mortgage tax principal, accrued interest, accrued fees and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior confirmed in writing by the Payment Agent to the Closing Date, plus such additional Borrower) other amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or owing to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Agents and the Administrative Agent);
Lenders under (e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of defined in) the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this DHI Credit Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (it being understood that all amounts held under the Term L/C Collateral Account under (and as defined in) the Existing DHI Credit Agreement shall be applied to the extent required for the repayment of the Term L/C Facility Term Loans under and as defined therein).
(c) The Lenders shall be reasonably satisfied with the environmental affairs of the Parent and its Subsidiaries.
(d) Evidence satisfactory to the Administrative Agent that (i) the Merger and other transactions contemplated under the LS Merger Agreement to occur on the Closing Date (as defined therein) shall have occurred or will be paid substantially concurrently simultaneously occur with the closing of this initial Borrowings hereunder in accordance with the LS Merger Agreement and (ii) the LS Holding Companies, the LS Operating Companies, the Sithe Holding Companies and the Sithe Operating Companies shall have been or shall be contributed on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than Closing Date by the outstanding principal amount of Existing Loans and ExistingParent to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc /Il/)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, from each Lender, each L/C Issuer and the Guarantyeach Loan Party;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly an executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions counterpart of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Security Agreement from each Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorParty, together with:
(A) to the extent required thereby certificates and not previously delivered to the Administrative Agent, certificates, if any, instruments representing the Pledged Equity Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,;
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,;
(C) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security ActUnited States Patent and Trademark Office and United States Copyright Office, federal and state tax and bankruptcy judgment lien searches, in or equivalent reports or searches, each case, dated as of a recent date listing all effective financing statements, lien notices or comparable documents (together with respect to the Borrower copies of such financing statements and each other documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Closing Date,Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted hereunder);
(D) evidence [reserved];
(E) a Perfection Certificate, in substantially the form of Exhibit I-1, duly executed by each of the completion of Loan Parties; and
(F) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPDLA Piper LLP (US), counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance acceptable to customary Administrative Agent, addressing such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a4.01(d), (e) and (bf) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxix) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and its Subsidiaries after giving effect to the execution and delivery Transaction, from its chief financial officer, substantially in the form of the Loan Documents and all Credit Extensions to be made on the Closing DateExhibit N;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiix) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxvxi) evidence that the Canadian Borrower Existing Credit Agreement has complied been, or concurrently with Section 11.15(d)the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require; and
(xiii) a Request for Credit Extension in accordance with the requirements hereof with respect to each Credit Extension to be made on the Closing Date.
(b) Each Lender The Administrative Agent shall have received, received (a) at least five (5) days 3 Business Days prior to the Closing Date, (i) all documentation and other information requested required by it pursuant regulatory authorities with respect to Section 11.19 and for purposes of compliance with other any Loan Party under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, as reasonably requested by the Arrangers in writing at least 10 Business Days prior to the extent requested Closing Date and (b) at least five three Business Days prior to the Closing Date, if any Borrower qualifies as a “legal entity” customer under the Beneficial Ownership Regulation and the Administrative Agent or a Lender has requested such certification at least ten business days prior to the Closing Date, a beneficial ownership certification in relation to such Borrower.
(5c) The Administrative Agent shall have received for its own account and for the account of each Arranger (or substantially simultaneously with the initial funding of the Facilities on the Closing Date, shall receive) all fees and expenses required to be paid to any of them by the Borrower on or prior to the Closing Date and, with respect to expenses, invoiced to the Borrower at least three (3) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(d) Unless waived by the Administrative AgentThe Solvency Specified Representation, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers Transaction Agreement Representations and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they Specified Representation shall be true and correct in all material respects (except for such representations as of the Closing Date; provided that, in each case, any representation and warranties warranty that have a materiality or is qualified as to “materiality,” “Material Adverse Effect qualification, which Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respectsrespects at such time on such date.
(e) The Acquisition shall have been consummated, or substantially concurrently with the funding under the Facilities on the Closing Date, on substantially the terms set forth in the Transaction Agreement without giving effect to any amendments, waivers or consents under the Transaction Agreement by the Company or its applicable subsidiary that (x) are materially adverse to the Lenders in their capacities as such (each, a “Materially Adverse Modification”) and (y) have not been approved by the Arrangers (such approval not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that any change to the definition of such earlier date;“Material Adverse Effect” in the Transaction Agreement shall be deemed to be materially adverse to the Lenders in their capacities as such).
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to haveAfter April 12, either individually or in the aggregate2022, there shall not have occurred a Material Adverse Effect;Effect (as defined in the Transaction Agreement) that is continuing.
(g) [Reserved]. Notwithstanding anything in this Agreement to the contrary, it is understood that with respect to any Collateral of the Borrower and its Subsidiaries, to the extent any such Collateral (other than to the extent that a lien on such Collateral may be perfected by (i) The Existing the filing of a financing statement under the Uniform Commercial Code or (ii) the delivery of stock certificates of any Domestic Subsidiary that is a Material Subsidiary of any Loan Party which are required to be pledged under this Agreement or the Security Agreement is not or cannot be provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, the provision or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Facilities and the making of any Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing other extensions of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made credit under this Agreement on the Closing Date) , but shall be required to be provided and perfected within the time period set forth in Schedule 6.19 after the Closing Date (ii) subject to extensions granted by the Administrative Agent, in its reasonable discretion). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is was subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) or in “pdf” or similar format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement in sufficient number for distribution to the Administrative Agent, the Collateral Agent and the Guarantyeach Borrower;
(ii) Notes a Note executed by the Borrowers each applicable Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]the Intercreditor Agreement duly executed by the Collateral Agent, the Trustee and the Loan Parties;
(iv) amendments to the U.S. Guaranty duly executed by Holdings, the Specified U.S. Borrower and reaffirmations of Mortgages, each U.S. Subsidiary Guarantor;
(1) the U.S. Security Agreement duly executed by the applicable Administrative Agent, the Collateral Agent and each U.S. Loan Party and (2) the Administrative Agent and otherwise in form and substance reasonably satisfactory to Canadian Security Agreement duly executed by the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower Collateral Agent and each GuarantorCanadian Loan Party, in each case together with:
(A) to the extent required thereby and not previously delivered written evidence reasonably satisfactory to the Administrative Agent, certificates, if any, Agent that certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered and instruments evidencing the Pledged Debt indorsed in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant blank have been delivered to the Security Agreement indorsed in blankNoteholder Collateral Agent (as defined therein), acting as gratuitous bailee of the Collateral Agent,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, UCC and/or PPSA of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, and such information shall reveal no material judgments and no Liens on the Collateral except Liens permitted under Section 7.01 hereunder or Liens discharged on or prior to the Closing DateDate pursuant to a pay-off letter,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Collateral Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) evidence that all other action that the Administrative Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements); and
(F) the Perfection Certificate, along with completed Schedules thereto, duly executed by Holdings, the Specified U.S. Borrower and the Canadian Borrower; provided, that, notwithstanding anything in this Section 4.01(a)(v) to the contrary, solely with respect to any non-U.S. Collateral, if the perfection of the Collateral Agent’s security interest in such Collateral may not be accomplished prior to the Closing Date without undue burden or expense and without the taking of any action that goes beyond commercial reasonableness, then the delivery of documents and instruments for perfection of such security interests shall not constitute a condition precedent to the availability of the Revolving Credit Facility to the U.S. Borrowers (but shall continue to be conditions precedent to the availability of the Revolving Credit Facility to the Canadian Borrower), and the Loan Parties hereby agree to deliver or cause to be delivered such documents and instruments, and take or cause to be taken such other actions as may be required to perfect such security interests within 30 days after the Closing Date; provided further that in each case, the Administrative Agent may, in its sole discretion, grant extensions of such time period;
(viivi) deeds of trust, trust deeds, deeds to secure debt, and mortgages, in substantially the form of Exhibit H (with such changes as may be reasonably satisfactory to the Administrative Agent and its counsel to account for local law matters) and otherwise in form and substance reasonably satisfactory to the Administrative Agent and covering the properties listed on Schedule 4.01(a)(vi) (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid (junior only to the Liens securing the Senior Secured Notes) and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (together with any of the following (i) a zoning endorsement, (ii) a zoning compliance letter from the applicable municipality or (iii) a zoning report from Planning and Zoning Resources Corporation, in each case satisfactory to the Administrative Agent in its reasonable discretion) and in amounts acceptable to the Administrative Agent in its reasonable discretion (such amount not to exceed the value of the property in cases where tie-in endorsements are available or, if not available, 10% of the value of such property), issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may reasonably deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated (i) no more than 30 days before the day of the initial Credit Extension, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent or (ii) an earlier date together with an affidavit from the applicable Borrower and survey coverage and survey endorsements from title insurers reasonably acceptable to the Administrative Agent), showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than Liens permitted under Section 7.03(h), encroachments and other defects reasonably acceptable to the Administrative Agent; provided that notwithstanding anything in this clause (C) to the contrary, to the extent that the Mortgage Policies for the properties listed on Schedule 4.01(a)(v)(i) hereto include no survey exception without the need to comply with this clause (C), this clause (C) shall not apply with respect to such property,
(D) a favorable opinion of local counsel to the Loan Parties in the states in which the Properties are located, addressed to the Administrative Agent, the Collateral Agent and each Lender, with respect to the enforceability and perfection of the Mortgages and any related fixture filings, substantially in the form of Exhibit J-3 (with such changes as may be reasonably satisfactory to the Administrative Agent and its counsel, including changes to account for local law matters), and with respect to such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request,
(E) evidence of the insurance required by the terms of the Mortgages, and
(F) such other consents, agreements and confirmations of lessors and third parties as the Collateral Agent may reasonably deem necessary or desirable and evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages has been taken; provided, that, notwithstanding anything in this Section 4.01(a)(vi) to the contrary, no mortgages, title insurance policies, surveys or other customary documentation relating to real property Collateral (the “Real Estate Collateral Deliverables”), will be delivered prior to or on the Closing Date and the delivery of such Real Estate Collateral Deliverable shall not constitute a condition precedent to the availability of the Revolving Credit Facility, and the Loan Parties hereby agree to deliver such Real Estate Collateral Deliverable (including related legal opinions as to matters of (i) enforceability and perfection of the Mortgages and any related fixture filings, and (ii) corporate formalities, as the Administrative Agent may reasonably request) within the earlier of 120 days after the Closing Date and the time at which any such real property Collateral secures, or Real Estate Collateral Deliverable is delivered in respect of, the Senior Secured Notes; provided further that in each case, the Administrative Agent may, in its sole discretion, grant extensions of such time period;
(1) an intellectual property security agreement, in substantially the form of Exhibit B to the U.S. Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “U.S. Intellectual Property Security Agreement”) and (2) an intellectual property security agreement, in substantially the form of Exhibit B to the Canadian Security Confirmation Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Canadian Intellectual Property Security Agreement”), duly executed by each U.S. Loan Party and Canadian Loan Party, as applicable, together with evidence that all action that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the U.S. Intellectual Property Security Agreement and the Canadian Intellectual Property Security Agreement has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent Agents may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xix) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiix) a favorable opinion of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent Agents and each Lender, as to customary the matters concerning the Loan Parties set forth in Exhibit J-1 and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvxi) a favorable opinion of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties, addressed to the Agents and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Canadian Loan Parties and the Canadian Loan Documents as the Administrative Agent may reasonably request;
(xii) favorable opinions of local counsel to the Loan Parties in Luxembourg the United States (other than in such jurisdictions as are addressed in Schedule 6.20) addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixxiii) a certificate signed by a Responsible Officer of each of the US Specified U.S. Borrower and the Canadian Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bd) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxiv) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case certification as to the extent in consolidated financial condition and solvency of Holdings and its subsidiaries (after giving effect to the possession of the Borrowers, as the Administrative Agent may reasonably require Transaction and the Administrative Agent shall be satisfied in its reasonable discretion with incurrence of indebtedness related thereto), from the condition chief financial officer of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; andHoldings;
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, endorsements naming the Administrative Collateral Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
constitutes Collateral (xxiv) [Reserved];
(xxv) evidence that and the Canadian Borrower has complied Required Lenders shall be reasonably satisfied with Section 11.15(dthe amount, types and terms and conditions of all insurance maintained by the Loan Parties and their subsidiaries);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the Collateral Agent, the L/C IssuerIssuers, the Swing Line Lender Lenders or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees (to the extent invoiced) required to be paid to the Administrative Agent Agents (including the fees and expenses of counsel (including any local counsel) for the Agents) and the Joint Lead Arrangers Bookrunner on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder (including the deemed issuance of the Existing Letters of Credit) is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgagesthe Intercreditor Agreement, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions each of the Mortgages to reflect the effectiveness of this Agreementparties thereto;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(viiv) the Security Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement,
(B) UCC and Lien searches and other evidence satisfactory to the Administrative Agent that Liens in favor of the Administrative Agent are the only Liens upon the ABL Facility Priority Collateral, the Canadian Debentures and the Canadian Debenture Pledge Agreementsexcept Liens permitted under Section 7.01,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not already in effect and duly executed by the appropriate parties, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of each of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, LLPP.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that, after giving effect to the issuance or deemed issuance of any Letters of Credit on the Closing Date, the payment by Borrower of all fees and expenses due hereunder and all payments due on the Closing Date, or escrowed for payment, under the Plan of Reorganization, the Borrower has Liquidity of not less than $110,000,000, (C) that there has the conditions specified in Section 4.01(i) have been no event or circumstance since the date satisfied and (D) that attached to such certificate are true and correct calculations evidencing satisfaction of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or conditions described in the aggregate, a Material Adverse Effectclauses (B) and (C) above;
(xxix) a certificate Borrowing Base Certificate as of December 16, 2016;
(x) a Financial Officer financial forecast of the US Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2017 through and including 2021;
(xi) for the months ending October 31, 2016 and November 30, 2016, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such month, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such month, all in reasonable detail, certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(xii) certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and each Material Loan Party after giving effect to the execution and delivery transactions contemplated by the Plan of the Loan Documents and all Credit Extensions Reorganization to be made occur on the Closing DateDate and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxiv) [Reserved];
(xxv) evidence that a duly executed payoff letter in respect of the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages DIP Credit Agreement in form and substance satisfactory to the Administrative Agent;
(xxviixv) a Loan Notice duly executed Letter of Credit Application for a Borrowingeach Letter of Credit requested to be issued on the Closing Date, together with all other documents and information pertaining to such requested Letter of Credit issuance as the L/C Issuer or the Administrative Agent may require; and
(xxviiixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C IssuerIssuers, the Swing Line Lender Lenders or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers L/C Issuer on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations All Loans outstanding under the Existing Credit Agreement shall have been repaid, and warranties all accrued but unpaid interest, letter of the Borrowers credit fees, and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) amounts outstanding thereunder shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment mayfull; provided that, for the avoidance of doubt, (i) Letters of Credit issued by Bank of America and outstanding under the Existing Credit Agreement shall remain outstanding as Letters of Credit hereunder and shall be made subject to and governed by the terms and conditions hereof and (ii) letters of credit issued by Capital One, National Association and outstanding under the Existing Agreement and shall not be subject to and governed by the terms and conditions hereof but shall be covered by a backstop Letter of Credit issued by Bank of America hereunder.
(e) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the proceeds execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents to which it is a Borrowing made under this Agreement party shall be in full force and effect.
(i) The Bankruptcy Court shall have entered an order, in form and substance reasonably satisfactory to the Administrative Agent, confirming the Plan of Reorganization (as the same may be amended, modified or supplemented, the “Confirmation Order”), (ii) the Confirmation Order shall not have been reversed or vacated or be subject to a stay, (iii) the Plan of Reorganization shall have been amended as required by the Administrative Agent to reflect the provisions and implementation hereof, and all amendments and modifications to the Plan of Reorganization shall be reasonably satisfactory in form and substance to the Administrative Agent, (iv) each of the conditions (other than those related to the initial extensions of credit hereunder on the Closing Date) to the occurrence of the “Effective Date” of the Plan of Reorganization (x) shall have been waived in a manner reasonably acceptable to the Administrative Agent or (y) shall have been, or concurrently shall be, satisfied and (v) the “Effective Date” of the Plan of Reorganization shall have occurred concurrently with the Closing Date but in any event not later than 20 days after the entry of the Confirmation Order by the Bankruptcy Court.
(g) The Administrative Agent shall have received evidence reasonably satisfactory to it that each of the conditions precedent (other than the effectiveness of this Agreement) for the effectiveness of the Term Loan Agreement has been, or contemporaneously will be, satisfied or waived in a manner reasonably acceptable to the Administrative Agent. Each of the Term Loan Documents shall be in form and substance reasonably satisfactory to the Administrative Agent.
(h) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(i) For the calendar months ending October 31, 2016 and November 30, 2016 Adjusted EBITDA shall have been (i) no less than negative $2,000,000 in either such month and (ii) no less than negative $4,000,000 for the two month period ending November 30, 2016. For purposes of this Section 4.01(j), “Adjusted EBITDA” means, for any period and without duplication, Consolidated EBITDA for such period plus the sum of (A) one-time employee retention bonuses paid or accrued in such period, (B) non-cash goodwill impairment charges and (C) non-cash losses from asset sales minus non-cash gains from asset sales. Adjusted EBITDA shall be determined based on the financial statements delivered by the Borrower pursuant to Section 4.01(a)(xi). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be either originals or telecopies (or electronic copies, followed in either case promptly by originals) , unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyOperating Company;
(ii) Notes an amended and restated Note executed by the Borrowers in favor of each Lender requesting a NoteLender;
(iii) [Reserved.]
(iv) amendments to the Pledge Agreement and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, each duly executed by each Borrower and each GuarantorCredit Party, together with:
(A) , to the extent required thereby and in each case not previously delivered to the Administrative Agent, certificates, if any, :
(A) certificates representing the any Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instrumentsinstruments evidencing the Pledged Debt indorsed in blank, if any, evidencing any Indebtedness pledged by to the Loan Parties extent not previously delivered to the Administrative Agent pursuant to the Security Agreement indorsed in blankExisting Credit Agreement,
(B) stamped receipt copies of proper financing statements, Personal Property Security Act financing statements duly filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, to the Canadian Debentures and extent not previously received by the Canadian Debenture Pledge AgreementsAdministrative Agent pursuant to the Existing Credit Agreement,
(C) copies of each Luxembourg Loan Party’s shareholder register and completed UCC, Personal Property Security Act, federal and state tax and bankruptcy judgment lien searches, in each casesearch requests, dated as of through a recent date with respect approved by the Administrative Agent, for such Credit Parties as may be agreed to between the Borrower Borrowers and each other Loan Party as of the Closing DateAdministrative Agent, in its reasonable discretion,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent any Lender may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Documents has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)taken;
(viiiv) a Canadian Security Confirmation amended and restated Mortgages, amending and restating each of the existing Mortgages (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) delivered under the Original Credit Agreement, the Second Credit Agreement, the Prior Credit Agreement or the Existing Credit Agreement, and covering the properties identified on Schedules 5.08(c), (d)(i) and (d)(ii) which are legally permitted to be mortgaged, each duly executed by the appropriate Credit Party, together with:
(A) evidence that counterparts of each Canadian Loan Partysuch amended and restated Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
(viiiB) modifications to the Mortgage Policies for the Mortgages, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring such amended and restated Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Credit Documents, and providing for such other affirmative insurance (including (i) endorsements for future advances under the Credit Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, (ii) standard flood hazard determination forms and (iii) if any property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Luxembourg Security Confirmation duly executed Borrowers as to the existence of special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (y) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by each Luxembourg Loan PartyThe National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent), affidavits of no change with respect to surveys and such other documents as the Administrative Agent or title insurer may deem necessary or desirable; and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken, subject only to Permitted Encumbrances;
(ixv) such certificates an officer’s certificate (A) attaching a certified copy of each Credit Party’s Organizational Documents, (B) attaching resolutions or other actionauthorizing the Transaction, each, in form and substance satisfactory to the Administrative Agent, and (C) attaching incumbency certificates and/or other certificates of Responsible Officers of each Loan Credit Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Credit Documents to which such Loan Credit Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each Borrower and each Guarantor Credit Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of incorporation or organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPBlank Rome, counsel to the Loan Credit Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Required Lenders may reasonably request;
(xivviii) a favorable opinion of (i) local counsel to each of the Loan Credit Parties (other than those Credit Parties organized under the Laws of Connecticut, Hawaii, New York and Oklahoma, which are, in Canada each instance, without tangible or other material assets), addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Credit Parties and the Loan Credit Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request, including, where applicable, the Mortgages;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying Borrowers certifying: (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2013, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) all materials and information provided to the Lenders by the Credit Parties in connection with the Transaction was, at the time provided, and continues to be complete and correct in all material respects as of the Closing Date; (D) either (1) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Credit Party of the Transaction and the execution, delivery and performance by such Credit Party and the validity against such Credit Party of the Credit Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (2) stating that no such consents, licenses or approvals are so required; and (E) confirming that the Revolving Credit Facility is permitted under the High Yield Notes Indenture;
(xxx) a certificate Borrowing Base Certificate showing the Borrowing Base as of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted SubsidiariesNovember 30, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws2014; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid Title searches with respect to the Borrowers’ cemeteries which are subject to Mortgages, evidencing that the Collateral Agent has a continuing valid and perfected first priority lien and security interest in and to the property subject to such Mortgages (or any amendments or supplements thereto) shall have been paid;subject only to Permitted Liens).
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);.
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(fd) There has been no shall not have occurred since December 31, 2013, any event or circumstance since the date of the Audited Financial Statements condition that has had or could be reasonably expected to haveexpected, either individually or in the aggregate, a Material Adverse Effect;
to have: (i) The Existing Loans and Existing L/C Advances a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (if anyactual or contingent), condition (financial or otherwise) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as prospects of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of Partnership and its Subsidiaries taken as a Borrowing made under this Agreement on the Closing Date) and whole; (ii) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Credit Document, or of the ability of any Credit Party to perform its obligations under any Credit Document to which it is a party; or (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against the Partnership and its Subsidiaries taken as a whole of any Credit Document. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Existing Lender (including that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Exiting Lender) document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder on the Closing Date is subject to satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent, except to the extent such conditions are subject to the Post-Closing Agreement:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent and the Guarantyeach Arranger;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote at least two (2) Business Days prior to the Closing Date;
(iii) [Reserved.]executed counterparts (sufficient in number for distribution to the Administrative Agent and each Arranger) of each of the Guaranties referred to in clause (a) through (c) of the definition thereof and each of the Securities Pledge Agreements referred to in clauses (a) through (c) of the definition thereof, together with, to the extent applicable, certificates representing the Securities Collateral referred to in the Securities Pledge Agreement accompanied by undated transfer powers executed in blank;
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of in all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementSecurities Pledge Agreements, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Securities Pledge Agreements,;
(Cv) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casea completed Perfection Certificate, dated as the Closing Date and signed by a Responsible Officer of the Administrative Borrower, together with all attachments contemplated thereby, and (to the extent reasonably requested by the Administrative Agent) the results of a recent date search of the Uniform Commercial Code (or equivalent), Tax, judgment and Lien filings made with respect to the Borrower Loan Parties in the jurisdictions contemplated by the Perfection Certificate and each other Loan Party as copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the Closing Date,
, released (D) evidence of the completion of all other actions, recordings and filings of or with respect arrangements reasonably satisfactory to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has for such release shall have been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementsmade);
(viivi) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) certificate of the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions Secretary or other action, incumbency certificates and/or other certificates of Responsible Officers Assistant Secretary or similar officer of each Loan Party as dated the Administrative Agent may require evidencing the identity, authority Closing Date and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;certifying:
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation certificate or articles of associationincorporation, as applicablecertificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of each such entityLoan Party, certified as of a recent date by the Secretary of State (or other similar official or Governmental Authority) of each the jurisdiction of its organization or by the Secretary or Assistant Secretary or similar officer of such entity Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(B) that attached thereto is a true and complete copy of a certificate as to the good standing of such Loan Party (to the extent that such concept exists in such jurisdiction) as of a recent date from such Secretary of State (or other similar official or Governmental Authority),
(C) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of that certificate, the resolutions described in the following clause (BD),
(D) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors or managers Directors (or equivalent governing body) of each such entity, as applicableLoan Party (or its managing general partner or managing member), authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effecteffect on the Closing Date, and
(CE) as to the incumbency and specimen signature of each officer or authorized signatory executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedingsParty;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable written opinion of ▇▇Wachtell, Lipton, R▇▇▇▇ & K▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Required Administrative Agent and the Lenders may shall reasonably request;
(xivviii) a favorable written opinion of (i) Loyens & Loeff, local counsel to the Loan Parties in Canada Netherlands, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent may and the Lenders shall reasonably request and request;
(iiix) a written opinion of A&L Goodbody, local counsel to the Loan Parties in British ColumbiaIreland, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties relating to capacity, authority and due execution of the Loan Documents as and the Administrative Agent may reasonably requesttransactions contemplated thereby by APH and/or APIT, to which it is a party;
(xvix) a favorable written opinion of A▇▇▇▇▇ ▇▇▇, local counsel to the Loan Parties Administrative Agent in Oklahoma Ireland, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to enforceability of the Loan Documents as the Administrative Agent may reasonably requestto which APH and/or APIT is a party;
(xviixi) a favorable written opinion of Potter A▇▇▇▇▇▇▇ C▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Wyoming Delaware, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestand the Lenders, covering such matters relating to the financing statements referred to in Section 4.01(a)(v) that are to be filed in the office of the Secretary of State of the State of Delaware naming the Administrative Borrower and New Synageva, as debtors;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Administrative Borrower certifying (A) that certifying and attaching, as true and complete, copies of the conditions specified in Sections 4.02(a) Merger Agreement and (b) have been satisfiedschedules and exhibits thereto, duly executed by the parties thereto and (B) certifying that there (x) as of the Minimum Condition Date, the Merger Agreement Representations are true and correct and (y) the Specified Representations are true and correct in all material respects as of the Closing Date (after giving effect to the Transactions) as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(xiii) a solvency certificate from the chief financial officer of the Administrative Borrower (after giving effect to the Transaction) substantially in the form attached hereto as Exhibit J;
(xiv) Committed Loan Notice together with a duly completed flow of funds memorandum. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, it is understood and agreed that to the extent any Collateral (other than Collateral with respect to which a Lien may be perfected (x) by the filing of a Uniform Commercial Code financing statement or (y) by the delivery and taking possession of stock certificates of Target and the respective Subsidiaries of the Administrative Borrower and Target (with respect to Target and its Subsidiaries, so long as the Administrative Borrower has used commercially reasonable efforts to obtain such certificates, solely to the extent such stock certificates are received from Target on or prior to the Closing Date)) is not or cannot be provided or the security interest of the Administrative Agent therein is not or cannot be perfected on the Closing Date after the Administrative Borrower’s use of commercially reasonable efforts to do so and without undue burden or expense, then the provision or and/or perfection of the security interest in such Collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but, instead, shall be required pursuant to the Post-Closing Agreement to be delivered and perfected within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its sole discretion).
(b) The Closing Date Acquisition shall be consummated substantially concurrently with the initial funding of the Facilities in accordance with the Merger Agreement and the Merger Agreement shall not have been amended or modified by the Administrative Borrower, and no event condition shall have been waived or circumstance consent granted by the Administrative Borrower, in any respect that is materially adverse to the Lenders (in their capacities as such) without the Arrangers’ written consent.
(c) Substantially concurrently with the initial funding of the Facilities, all indebtedness outstanding under the Existing Credit Agreement will be repaid and the commitments thereunder terminated and all Liens securing such Indebtedness shall be terminated and released.
(d) Except as disclosed (i) in the publicly available Company SEC Documents (as defined in the Merger Agreement) filed with or furnished to the SEC (including the exhibits and schedules thereto) since December 31, 2013 and prior to the date of the Audited Financial Statements Merger Agreement (excluding any disclosure set forth in any such Company SEC Document that is in any risk factor section, or in any other section to the extent they are forward-looking statements or are similarly non-specific, predictive, cautionary or forward-looking in nature), where the relevance of the information to a particular representation is reasonably apparent on the face of such disclosure or (ii) in the Company Disclosure Schedule (as defined in the Merger Agreement), as of the Minimum Condition Date, since December 31, 2014, there has not been any fact, change, circumstance, event, occurrence or development that has had or could would reasonably be reasonably expected to have, either individually or in the aggregate, a Synageva Material Adverse Effect;
Effect (xx) a certificate of a Financial Officer as defined in the Merger Agreement as of the US Borrower attesting to the Solvency date of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Merger Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(be) Each Lender The Administrative Agent shall have received, at least five (5) days Business Days prior to the Closing Date, (i) all documentation and other information requested required with respect to the Loan Parties by it pursuant to Section 11.19 and for purposes of compliance with other regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act to the extent requested in writing at least five ten (510) Business Days prior to the Closing Date.
(f) Substantially concurrently with the initial funding under the Facilities, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All all fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect in each case, to the Mortgages extent invoiced at least two (or any amendments or supplements thereto2) shall have been paid;Business Days prior to the Closing Date.
(dg) Unless Substantially concurrently with the initial funding under the Facilities, unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented fees, charges and disbursements of outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one two (12) Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto in reasonable detail. The Administrative Agent shall promptly notify the Lenders and correct the Borrowers in all respects) on and as writing of the date occurrence of the Closing Date, except to Date and each of the extent Lenders hereby agrees that the receipt of such representations and warranties specifically refer to an earlier date, in which case they notification shall be true conclusive and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingbinding.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date date of this Agreement (or, in the case of certificates of governmental officials, a recent date before the Closing Datedate of this Agreement) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyCompany;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgagesthe Collateral Documents, duly executed by creating Liens on the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security AgreementCollateral, duly executed by each Borrower and each Guarantorapplicable Loan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementCollateral Documents, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security AgreementCollateral Documents,
(B) Uniform Commercial Code Searches, dated on or before the Canadian Debentures and date of the Canadian Debenture Pledge Agreementsinitial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name each applicable Loan Party as debtor, together with copies of such other financing statements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, andwhether in the United States, the United Kingdom, Australia or any other jurisdiction,
(ED) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and establish the priority of the Liens created under the Security Agreement Collateral Documents has been taken (including receipt of share certificates and share transfer forms executed in blank, the Intercompany Notes endorsed in blank and duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementsconsent agreements);, and
(viiE) a Canadian Security Confirmation duly executed by each Canadian Loan Party;binding title insurance commitments or policies insuring the Liens on any real property subject to the Collateral Documents and other evidence satisfactory to the Administrative Agent as to the intended priority of the Liens created under the Collateral Documents.
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP▇, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties set forth in Exhibit I and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvvii) a favorable opinion opinions of local United Kingdom counsel to FIFL, FL and any other Foreign Obligor organized under the Loan Parties in Luxembourg Laws of the United Kingdom, and of other counsel to other Foreign Obligors addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Parties FIFL, FL, such other Foreign Obligors, and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiviii) a certificate of a Responsible Officer of each Loan Party (or the Company on behalf of each Loan Party) either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Funded Debt to EBITDA Ratio as of the last day of the fiscal quarter of the Company ended on March 31, 2009, calculated on a pro forma basis as if the Closing Date and the initial Borrowing occurred on March 31, 2009;
(xxx) a certificate duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on March 31, 2009, completed on a Financial pro forma basis as if the Closing Date and the initial Borrowing occurred on March 31, 2009, signed by a Responsible Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateCompany;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvxii) evidence that the Canadian Borrower Existing Credit Agreement has complied been or concurrently with Section 11.15(d)the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(xxvixiii) endorsements to existing title insurance policies with respect to unaudited consolidated and consolidating income statements of the Mortgages in form Company and substance satisfactory to its Subsidiaries as of and for each of the Administrative Agent;
(xxvii) a Loan Notice for a Borrowingfour month period ended April 30, 2009 and the five month period ended May 31, 2009; and
(xxviiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before August 10, 2009. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Furmanite Corp)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (iv) or (v) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower to the extent the Borrower’s signature is required thereon, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) an executed counterparts counterpart of this Agreement and the GuarantyAgreement;
(ii) Revolving Loan Notes executed by the Borrowers Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender’s Commitment as of the Closing Date;
(iii) [Reserved.]a Swing Line Note executed by the Borrower in favor of the Swing Line Lender (if the Swing Line Lender requests such a Note) in the principal amount of the Swing Line Sublimit;
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party or is to be a party;
(xv) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that each Loan Party the Borrower is duly organized or formedincorporated, validly existing and that each Borrower and each Guarantor is validly existing, in good standing in Delaware and is qualified to engage in business and is in its jurisdiction good standing in Texas, including certified copies of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectBorrower’s Organization Documents;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixvi) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that that, except as set forth in Schedule 5.06, there has been no event or circumstance since the date of the Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(xxvii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Borrower, substantially in the form of Exhibit H-1;
(viii) an opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, substantially in the form of Exhibit H-2;
(ix) a certificate of signed by a Financial Responsible Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiariescertifying that, on a consolidated basis, before the Closing Date and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions Loans to be made on the Closing Date and the payments being made with the proceeds thereof to amounts outstanding under the 2004 Credit Agreement, (A) the Borrower has paid all principal, interest, fees and other amounts outstanding under the 2004 Credit Agreement and (B) no “Letters of Credit” (as defined in the 2004 Credit Agreement) are outstanding. Each Lender that is a party to the 2004 Credit Agreement hereby waives any costs or fees under the 2004 Credit Agreement relating to the prepayment of the 2004 Credit Agreement on the Closing Date;
(xxix) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided such other certificates or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, documents as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateralrequest;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;; and
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced in reasonable detail at least one (1) three Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Sources: Credit Agreement (Bj Services Co)
Conditions of Initial Credit Extension. The obligation of each Lender and the L/C Issuer and each Lender to make its any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedfollowing items, each properly executed by a Responsible Officer of the signing applicable Loan Party, each dated as of the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract legal opinion from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ and ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivii) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lendersecretary’s certificates, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably borrowing request and (ii) local counsel to closing certificates set forth on the Loan Parties in British Columbia, Canada closing checklist attached hereto as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestExhibit G;
(xviii) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a solvency certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate form of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsExhibit I; and
(xxiiiiv) evidence the Loan Documents, except for those items that all insurance required are specifically permitted herein to be maintained pursuant to delivered after the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may requireRestatement Effective Date.
(b) Each Lender The representations and warranties of the Loan Parties contained in Article V or any other Loan Document, shall have receivedbe true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) on and as of the date of such initial Credit Extension, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, except to the extent requested at least five that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (5or in all respects for such representations and warranties that are by their terms already qualified as to materiality) Business Days prior to the Closing Date, and (ii) to the extent requested by as of such Lender, a Beneficial Ownership Certification in relation to each Borrowerearlier date;
(ic) All fees required to No Default or Event of Default shall have occurred and be paid to the Administrative Agent continuing, or would immediately result from such initial Credit Extension and the Joint Lead Arrangers on or before consummation of the Closing Date shall have been paid, (ii) all fees required to be paid to Transaction and the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paidLoan Documents;
(d) Unless waived by the Administrative AgentAll accrued costs, the Borrowers shall have paid fees and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable out-of-pocket fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties the fees and expenses of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Dateadvisors) and (ii) each Existing Lender (including each Exiting Lender) other compensation due and payable to Administrative Agent, the Arrangers and the Lenders on or before the Restatement Effective Date shall have been paid (or will be paid substantially concurrently with deducted from the closing initial funding of this Agreement on the date hereofLoans hereunder), to the extent set forth in the Fee Letter or otherwise invoiced at least two (2) all accrued interest, accrued fees, and other amounts payable Business Days prior to the Restatement Effective Date (other than except as otherwise reasonably agreed by the outstanding principal amount of Existing Loans and ExistingBorrower Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C C-BA Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowing Agent;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions counterparts of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, Pledge Agreement together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agentthereby, certificates, if any, certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act UCC financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreementtherein, the Canadian Debentures and the Canadian Debenture Pledge Agreements,and
(C) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, UCC search reports dated as of a recent date with respect reasonably near to the Borrower and each other Loan Party as of the Closing Date,, listing all effective financing statements which name any Loan Party party to the Pledge Agreement (under their present names and any previous names) as debtors, together with copies of such financing statements, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under thereby;
(iv) Subordination Agreements with respect to any Subordinated Debt (dated as of the Security Agreement has been taken (including receipt date of duly executed payoff letters, UCC-3 termination statements execution and Personal Property Security Act discharge verification statementsdelivery thereof);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, special New York counsel to the Loan Parties, and such local counsel to the Loan Parties as the Administrative Agent shall request (it being understood that opinions as to Foreign Subsidiaries shall be limited to those that are Material Subsidiaries), in each case addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses consents and approvals of a Governmental Authority required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses which consents and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses consents or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (BC) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxx) a certificate duly completed Compliance Certificate as of the last day of the fiscal quarter of WFS ended on June 30, 2010, signed by a Financial Responsible Officer of WFS, which Compliance Certificate shall include a list of the US Borrower Guarantors as of the Closing Date and the aggregate book value of assets (including Equity Interests but excluding Investments that are eliminated in consolidation) represented by each such Guarantor on an individual basis as of June 30, 2010;
(xi) certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made any Borrowings on the Closing Date, from its chief financial officer, treasurer or other Responsible Officer with knowledge of the financial condition of such Loan Party;
(xxixii) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
evidence that all Permitted Receivables Facilities (xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to as defined in the Existing Credit Agreement), the Administrative Agent shall have received and all existing Phase I environmental assessments and other auditsobligations thereunder, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion concurrently with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsClosing Date are being terminated; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C C-BA Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to under the Administrative Agent and the Joint Lead Arrangers Loan Documents on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);.
(ed) The representations and warranties Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to each Agent, each Lender and the Borrower;
(iiA) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote prior to the date hereof;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G hereto (iv) amendments together with each other security agreement and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.12, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the "Security Agreement"), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,, Alderwoods Credit Agreement
(B) copies of proper financing statementsstatements (the "UCC Financing Statements"), Personal Property Security Act financing statements to be filed on or other filings in form appropriate for filing before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement (other than the Mortgages, the UCC Financing Statements, the Intellectual Property Security Agreement and any other recordings or filings that the Lenders agree may be undertaken subsequent to the Effective Date) that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect and protect the Liens created thereby, and,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security Agreement has been taken (including including, without limitation, receipt of duly executed payoff letters, deposit account control agreement terminations in respect of the Existing Credit Facility and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian an intellectual property security agreement, in substantially the form of Exhibit I hereto (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "Intellectual Property Security Confirmation Agreement"), duly executed by each Canadian Loan PartyParty party thereto, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, Alderwoods Credit Agreement and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPDay, counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestset forth in Exhibit J-1;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections Section 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxx) a certificate of a Financial Officer of the US Borrower certificates and letters attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution and delivery of Refinancing, from the Loan Documents and all Credit Extensions to be made on the Closing DateBorrower's Chief Financial Officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect;
(xii) certified copies of each of the Related Documents, duly executed by the parties thereto;
(xiii) one or more Requests for Credit Extension, as applicable, relating to the initial Credit Extension;
(xiv) evidence that (A) the Existing Credit Facility, the 11% Notes and the Rose Hills Notes have been or concurrently with the Effective Date are being terminated, prepaid, redeemed or defeased or otherwise satisfied or extinguished and (B) all Liens securing obligations under the Existing Credit Facility have been or concurrently with the Effective Date are being released;
(xv) a duly executed pledge agreement or equivalent document under English law, together with any other documents necessary to create and perfect a security interest over the certificates of insuranceUK Collateral, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under and evidence that all insurance policies (including flood insurance policies) maintained with respect steps necessary to the assets accomplish such creation and properties of the Loan Parties that constitute Collateralperfection have been taken and remain in full force and effect;
(xxivxvi) [Reserved];
(xxv) evidence that a duly executed pledge agreement or equivalent document under Canadian law, together with any other documents necessary to create and perfect a security interest over the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages Collateral, legal opinions of Canadian counsel in form and substance satisfactory to the Administrative AgentAgent and evidence that all steps Alderwoods Credit Agreement necessary to accomplish such creation and perfection have been taken and remain in full force and effect;
(xxviixvii) a Loan Notice for duly executed pledge agreement or equivalent document, together with any other documents necessary to create and perfect a Borrowingsecurity interest over any Foreign Collateral (other than the UK Collateral and the Canadian Collateral), legal opinions of applicable foreign counsel in form and substance satisfactory to the Administrative Agent and evidence that all steps necessary to accomplish such creation and perfection under the law of the jurisdiction of organization of the relevant Foreign Subsidiary have been taken and remain in full force and effect; and
(xxviiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative any Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Effective Date shall have been paid.
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to any Loan Party's knowledge, threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect, (ii) all fees required purports to be paid adversely affect the Refinancing or any portion thereof or the ability of the Borrower or any other Loan Party to perform their respective obligations under the Lenders on Loan Documents, or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required purports to be paid with respect to adversely affect the Mortgages (legality, validity or enforceability of any amendments Loan Document or supplements thereto) shall have been paid;the consummation of the Refinancing.
(d) Unless waived by All governmental authorizations and all third party consents and approvals necessary in connection with the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Refinancing shall have been paid obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in full (or will be paid effect; all applicable waiting periods in full substantially concurrently connection with the closing of this Agreement as Refinancing shall have expired without any action being taken by any Governmental Authority; and no Law shall be applicable in the judgment of the date hereof) (which payment mayLenders, for in each case that restrains, prevents or imposes materially adverse conditions upon the avoidance Refinancing or the rights of doubtthe Loan Parties freely to transfer or otherwise dispose of, be made with the proceeds or to create any Lien on, any properties now owned or hereafter acquired by any of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingthem.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations executed counterpart of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby certificates and not previously delivered to the Administrative Agent, certificates, if any, instruments representing the Pledged Equity Securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,;
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,;
(C) certified copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security ActUnited States Patent and Trademark Office and United States Copyright Office, federal and state tax and bankruptcy judgment lien searches, in or equivalent reports or searches, each case, dated as of a recent date listing all effective financing statements, lien notices or comparable documents (together with respect to the Borrower copies of such financing statements and each other documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Closing Date,Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted hereunder);
(D) evidence the Deposit Account Control Agreements and the Securities Account Control Agreement, in each case as referred to in the Security Agreement and duly executed by the appropriate parties;
(E) a Perfection Certificate, in substantially the form of Exhibit I-1, duly executed by each of the completion of Loan Parties; and
(F) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) a Canadian Security Confirmation duly executed by each Canadian Loan Party[reserved];
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLPDLA Piper LLP (US), counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance acceptable to customary Administrative Agent, addressing such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Net Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(xxx) a certificate of a Financial Officer of the US Borrower certificates attesting to the Solvency of the US Borrower Loan Parties and the Restricted Subsidiaries, on a consolidated basis, before and their Subsidiaries after giving effect to the execution and delivery Transaction, from its chief financial officer, substantially in the form of the Loan Documents and all Credit Extensions to be made on the Closing DateExhibit N;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixi) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each (x) Upon the reasonable request of any Lender shall have received, made at least five seven (57) days prior to the Closing Date, (i) all the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested by it pursuant to Section 11.19 and for purposes of compliance in connection with other applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, the Act, in each case at least three (3) days prior to the extent requested Closing Date and (y) at least five three (53) Business Days days prior to the Closing Date, and (ii) any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to the extent requested by such Lendereach Lender that so requests, a Beneficial Ownership Certification in relation to each Borrower;such Loan Party.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers Arranger on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(d) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the GuarantyPerfection Certificate;
(ii) Notes executed by the Borrowers each Borrower in favor of each Lender requesting a NoteNotes;
(iii) [Reserved.]
a pledge and security agreement, in substantially the form of Exhibit F (iv) amendments together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.13, in each case as amended, the “Security Agreement”), duly executed by the applicable Loan Party Company and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions each of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorGuarantors listed on Schedule G-1 that is a Domestic Subsidiary, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,and
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the Borrower and each other jurisdictions referred to in clause (B) above that name any Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect that is a party to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyas debtor, and
(E) evidence that all together with copies of such other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification financing statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require (but only to the extent such concepts exist under applicable law) to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor (other than Herbalife Taiwan) is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xivi) with respect favorable opinions of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party Parties, in substantially the form of Exhibit J-1, ▇▇▇▇▇▇ and that such resolutions have not been modifiedCalder, rescinded or amended and are in full force and effect, (C) as special Cayman Islands counsel to the incumbency and specimen signature Loan Parties, in substantially the form of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entityExhibit J-2, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, special Luxembourg counsel to the Loan Parties, in substantially the form of Exhibit J-3, and of ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special Nevada counsel to the Loan Parties, in substantially the form of Exhibit J-4, each addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party Holdings either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower Holdings certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsatisfied (other than any such conditions as are subject to the judgment or discretion of the Administrative Agent or any Lender), and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
Effect and (xxC) a certificate of a Financial Officer calculation of the US Borrower attesting to the Solvency Consolidated Total Leverage Ratio as of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery last day of the Loan Documents and all Credit Extensions fiscal quarter of the Company most recently ended prior to be made on the Closing Date;
(xxiix) a duly completed Compliance Certificate as of the Audited Financial Statements and last day of the Unaudited Quarterly Financial Statementsfiscal quarter of the Company ended on December 31, 2010, signed by a Responsible Officer of the Company;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiix) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;; and
(xxiv) [Reserved];
(xxvxi) evidence that the Canadian Borrower Existing Credit Agreement has complied been or concurrently with Section 11.15(d);
(xxvi) endorsements the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been, concurrently with the Closing Date are being, or provision being provided therefor to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurancesbe, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may requirereleased.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Company shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before March 31, 2011. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to the Pledge and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, Agreement duly executed by each Borrower and each Guarantor, Loan Party; together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity Shares referred to therein in the Pledge and Security Agreement accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, UCC of all jurisdictions that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) a Canadian Security Confirmation deeds of trust, mortgages, leasehold deeds of trust and leasehold mortgages, in substantially the form of Exhibit I (with such changes as may be reasonably satisfactory to the Administrative Agent and Collateral Agent and their counsel to account for local law matters) and covering substantially all of the operating assets of the Borrower and its Subsidiaries owned on the Closing Date (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.13, in each case as amended, the “Mortgages”), duly executed by each Canadian the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been or will be paid upon recording,
(B) in respect of the Chico Plant a fully paid title insurance policy (the “Mortgage Policies”) in form and substance, with endorsements and in amounts reasonably acceptable to the Administrative Agent and Collateral Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent and Collateral Agent, insuring the Mortgage in respect of such property to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, and
(C) evidence that all other action that the Administrative Agent and Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties set forth in Exhibit G and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvviii) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestInitial Financial Statements;
(xviix) a favorable opinion of local counsel to certificates or binders evidencing Loan Parties’ insurance in effect on the Loan Parties in Oklahoma addressed to date hereof naming the Administrative Collateral Agent as loss payee and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestadditional insured;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower General Partner certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements September 30, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the Closing Date demonstrating that such ratio does not exceed 5.0 to 1.0;
(xxxi) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on Loan Parties (taken as a consolidated basis, before and whole) after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements Acquisition and the Unaudited Quarterly Financial Statements;
(xxii) to Initial Public Offering, from the extent not previously provided chief financial officer, chief accounting officer, treasurer or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession controller of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental LawsGeneral Partner; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent, the Syndication Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The Intercreditor Agreement shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(e) The representations corporate and warranties capital structure of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which Borrower shall be true and correct as disclosed in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;Registration Statement.
(f) There has been no event or circumstance since the date The consummation of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or Initial Public Offering shall have occurred on substantially the terms as contained in the aggregate, a Material Adverse Effect;Registration Statement.
(g) The Borrower shall have received sufficient proceeds from the Initial Public Offering to finance that portion of the Acquisition not funded by the use of proceeds from this Agreement.
(i) The Existing Loans Borrower has received all governmental, shareholder and Existing L/C Advances third party consents and approvals necessary to consummate the Initial Public Offering, which consents and approvals are in full force and effect, (ii) no order, decree, judgment, ruling or injunction exists which restrains the consummation of the Initial Public Offering or the transactions contemplated by this Agreement, and (iii) there is no pending, or to the knowledge of the Borrower, threatened, action, suit, investigation or proceeding which seeks to restrain or affect the Initial Public Offering, or which, if anyadversely determined, could materially and adversely affect the ability of the Borrower to consummate the Initial Public Offering.
(i) Concurrently with the consummation of the Initial Public Offering, (i) all outstanding Intercompany Indebtedness shall have been paid in full (repaid or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) forgiven and (ii) each Existing Lender (including each Exiting Lender) that portion of the loans made under the Targa Credit Agreement with respect to the assets owned by Targa North Texas and acquired in the Acquisition shall have been paid repaid and arrangements satisfactory to the Administrative Agent shall have been made for the release of the Liens securing same.
(j) The Closing Date shall have occurred on or will be paid substantially concurrently before March 15, 2007. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the closing of conditions specified in this Section 4.01, each Lender that has signed this Agreement on shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) all accrued interest, accrued fees, and other amounts payable (other than Administrative Agent shall have received notice from such Lender prior to the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Targa Midstream Services Limited Partnership)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent, except to the extent such conditions are subject to the Post-Closing Agreement:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyAdministrative Borrower;
(ii) Notes executed by the Borrowers in favor counterparts of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments other Loan Document, sufficient in number for distribution to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorBorrower, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Securities Collateral referred to therein in the Securities Pledge Agreement accompanied by undated stock transfer powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any U.S. Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of of, or arrangements reasonably satisfactory to the Administrative Agent for, all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(E) Deposit Account Control Agreements with respect to each Control Account that is a deposit account, duly executed by each of the parties thereto;
(F) Securities Account Control Agreements with respect to each Control Account that is a securities account, duly executed by each of the parties thereto;
(G) landlord’s waiver and consent agreements with respect to the chief executive office of the Administrative Borrower, duly executed by each lessor of such real property; and
(EH) evidence that all other action actions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has have been taken (including receipt of duly executed payoff letters, UCC-3 termination statements statements, and Personal Property Security Act discharge verification statementsbailee waivers and consent agreements);
(viiiii) a Canadian Security Confirmation duly executed by the Mortgage, acknowledged and delivered in form suitable for filing or recording, together with each Canadian Loan Partyof the Related Mortgage Documents;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor other Loan Party is validly existing, in good standing (to the extent applicable in the relevant jurisdiction) and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectChange;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇Ropes & ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Required Administrative Agent and the Lenders may shall reasonably request;
(xivvii) without limiting the generality of any subsections of this Section 4.01, in relation to a Borrower and/or a Guarantor incorporated in and under the laws of Switzerland, (A) copies of the articles of association (Statuten), certified by the commercial register of the relevant Canton (such certification not being older than 20 Business Days prior to the Closing Date), (B) a copy of a certified excerpt from the commercial register of the relevant Canton, no older than 10 Business Days prior to the Closing Date, (C) a copy of a resolution of the board of managing directors (Geschäftsführer) or board of directors (Verwaltungsrat) approving the transaction contemplated by and the terms of each Loan Document to which such Borrower and/or Guarantor is a party, (D) a copy of minutes of a general meeting of shareholders (Generalversammlung/Gesellschafterversammlung), approving the transaction contemplated by and the terms of each Loan Document to which such Borrower and/or Guarantor is a party, in case of, the disbursement of any dividend or deemed dividends that may result from the granting of up- and cross-stream security;
(viii) a favorable opinion of (i) ▇▇▇▇▇▇▇▇▇ ▇▇, local counsel to the Loan Parties in Canada Switzerland, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent may and the Lenders shall reasonably request request;
(ix) a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇ Ltd., local counsel to the Administrative Agent and each Lender in Switzerland, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(iix) a favorable opinion of Loyens & Loeff, local counsel to the Loan Parties in British ColumbiaNetherlands, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent may and the Lenders shall reasonably request;
(xvixi) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Oklahoma Canada, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent may and the Lenders shall reasonably request;
(xviixii) a favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, local Rhode Island counsel to the Loan Parties in Wyoming Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to customary the Administrative Agent and the Lenders, covering such matters concerning the Loan Parties and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent may and the Lenders shall reasonably request;
(xviiixiii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxiv) a certificate signed by a Responsible Officer of the US Administrative Borrower certifying (A) certifying that after giving effect to the Transactions (x) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (By) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectChange, (B) certifying that each of the conditions set forth in Section 4.01(b) have been satisfied and (C) certifying and attaching, as true and complete, copies of the Merger Agreement and schedules and exhibits thereto, duly executed by the parties thereto;
(xxxv) a solvency certificate of a Financial Officer from the chief financial officer of the US Administrative Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and (after giving effect to the execution and delivery of Transaction) substantially in the Loan Documents and all Credit Extensions to be made on the Closing Dateform attached hereto as Exhibit J;
(xxixvi) the Audited Financial Statements and the Unaudited Quarterly Financial Statementsa duly completed flow of funds memorandum;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixvii) evidence that all insurance (including any flood insurance) required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior Prior to or substantially simultaneously with the initial Credit Extensions on the Closing Date, the Acquisition and the Merger shall be consummated in accordance with the terms of the Merger Agreement (without giving effect to any amendments, waivers or other modifications thereto since December 28, 2011 that are materially adverse to the Lenders without the consent of the Lead Arranger, such consent not to be unreasonably withheld or delayed).
(c) Prior to or substantially simultaneously with the effectiveness of this Agreement on the Closing Date, the Borrower shall have terminated the commitments and repaid or prepaid all of its obligations under the Existing Credit Agreement (other than with respect to contingent reimbursement obligations on account of letters of credit issued thereunder which shall continue to remain outstanding after the Closing Date, provided that (x) arrangements satisfactory to the applicable letter of credit issuer shall have been made with respect to such letters of credit and (y) Indebtedness under such letters of credit are permitted under Section 7.02), and shall have taken all other necessary actions such that, after giving effect to the Transaction, (i) the Borrower and its Subsidiaries shall have outstanding no material Indebtedness for borrowed money other than (i) the Loans and (ii) Indebtedness permitted by Section 7.02.
(d) The Administrative Agent shall have received evidence (which may be in the form of a certificate signed by a Responsible Officer of the Administrative Borrower certifying and detailing account balances by relevant jurisdiction) that after giving effect to the Transaction, the Administrative Borrower and its Subsidiaries shall have on hand not less than $200,000,000 in unrestricted cash and Cash Equivalents.
(e) The Arrangers shall have received all documentation and other information relating to the Loan Parties requested by it pursuant reasonably prior to Section 11.19 closing in order to allow the Arrangers and for purposes of compliance the Lenders to comply with other applicable “know your customer” and anti-money laundering rules and regulations, to including the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Act.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dg) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) two Business Day Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgagesthe Intercreditor Agreement, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions each of the Mortgages to reflect the effectiveness of this Agreementparties thereto;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(viiv) the Security Agreement, duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of UCC in all jurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement,
(B) UCC and Lien searches and other evidence satisfactory to the Administrative Agent that Liens in favor of the Administrative Agent are the only Liens upon the Collateral, the Canadian Debentures and the Canadian Debenture Pledge Agreementsexcept Liens permitted under Section 7.01,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(D) the Account Control Agreements (as defined in the Security Agreement) required pursuant to the Security Agreement and duly executed by the appropriate parties, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable written opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, ▇ LLP addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that, after giving effect to the issuance or deemed issuance of any Letters of Credit on the Closing Date, any additional Credit Extension on the Closing Date, the payment by the Borrower of all fees and expenses due hereunder and all payments due on the Closing Date, Revolving Credit Usage shall not exceed $20,000,000, and (C) that there has been no event or circumstance since the date attached to such certificate are true and correct calculations evidencing satisfaction of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or conditions described in the aggregate, a Material Adverse Effectclause (B) above;
(xxix) a certificate Borrowing Base Certificate as of March 31, 2019;
(x) a financial forecast of Parent and its Subsidiaries on a consolidated basis prepared by management of Parent, including consolidated balance sheets and statements of income or operations and cash flows of Parent and its Subsidiaries on a quarterly basis for each of Parent’s fiscal years 2019 through and including 2024;
(xi) for the month ended March 31, 2019, a consolidated balance sheet of Parent and its Subsidiaries as at the end of such month, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such month, all in reasonable detail, certified by a Financial Officer of Parent as fairly presenting in all material respects the US financial condition, results of operations, shareholders’ equity and cash flows of Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(xii) a certificate from the Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Material Loan Party before and after giving effect to the execution entering into this Agreement and delivery any repayment or incurrence of the Loan Documents and all Credit Extensions to be made Indebtedness on the Closing DateDate and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, and endorsements naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxivxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies duly executed payoff letters with respect to the Mortgages existing indebtedness under each of the first lien credit agreement and the second lien credit agreement, together with all related release instruments and attachments thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(xxviixv) a Loan Notice for a Borrowing[Reserved]; and
(xxviiixvi) such other assurancesif applicable, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior a duly executed Letter of Credit Application for each Letter of Credit requested to be issued on the Closing Date, (i) together with all other documents and information pertaining to such requested by it pursuant to Section 11.19 and for purposes Letter of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to Credit issuance as the extent requested at least five (5) Business Days prior to L/C Issuer or the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;Administrative Agent may reasonably require.
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers any L/C Issuer on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Administrative Agent on behalf of the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day two days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) [reserved].
(e) The representations All consents, licenses, approvals, waivers, acknowledgements and warranties other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Borrowers Loan Documents to which it is a party shall be in full force and effect.
(f) The Borrower shall have provided, in form and substance satisfactory to the Administrative Agent and each Lender, all documentation and other Loan Party contained information as the Administrative Agent or any Lender deems appropriate in Article V connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If the Borrower or any other Loan Document are true Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification to the Administrative Agent and correct the Lenders upon request. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in all material respects (except for such representations and warranties this Section 4.01, each Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or immaterial items (which shall not include the incumbency certificate, resolutions, articles or bylaws of the Borrower) specified in clause (iii) or (iv) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the GuarantyIntercreditor Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes executed Pledge Agreement, Security Agreement and Deed of Trust in appropriate form for recording, as applicable, together with
(A) UCC-1 financing statements executed by the Borrowers Borrower or the Subsidiaries, as applicable, to be filed, registered or recorded as necessary or advisable to perfect the Liens of the Administrative Agent for the benefit of the Lenders under the Collateral Documents in accordance with applicable law;
(B) written advice relating to such Lien and judgment searches as the Administrative Agent shall have reasonably requested with respect to any of the Collateral, and such termination statements or other documents, including payoff letters, as may be necessary to release any Lien not permitted by Section 7.01;
(C) evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable, have been taken to perfect and protect the first priority security interest created by the Collateral Documents other than the Security Agreement, subject only to Liens permitted under Section 7.01(c), (d) and (h), and the security interest created by the Security Agreement, subject only to Liens permitted under Section 7.01(b), (c), (d), (h), (j) and (o);
(D) evidence that adequate arrangements have been made for payment by the Borrower of any filing or recording tax or fee in connection with the Deed of Trust;
(E) with respect to the Mortgaged Property, standard A.L.T.A. or comparable policies of title insurance or a binder or binders issued by Fidelity National Title insuring or undertaking to insure, in the case of a binder, that the applicable Deed of Trust creates and constitute valid Liens against such Mortgaged Property in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments the Administrative Agent, for the benefit of the Lenders, subject only to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and exceptions reasonably acceptable to the Administrative Agent and otherwise in form the Required Lenders, with such endorsements and substance reasonably satisfactory to affirmative insurance as the Administrative Agent, amending such terms and provisions of Agent or the Mortgages to reflect the effectiveness of this AgreementRequired Lenders may reasonably request;
(vF) proof of payment of all title insurance premiums, documentary stamp or intangible taxes, recording fees and mortgage tax affidavits taxes payable in connection with the recording of the Deed of Trust or amendments to mortgage tax affidavitsthe issuance of the title insurance policies, as applicableincluding sums, duly executed if any, due in connection with any future advances that may be in the form of disbursement instructions and associated payoff letters approved by the applicable Loan Party relevant title insurers and otherwise in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(viG) the Security Agreement, duly executed by each Borrower all certificates and each Guarantor, together with:
(A) to the extent required thereby instruments representing Pledged Collateral and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated such stock transfer powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,may specify; and
(BH) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions evidence that the Administrative Agent may deem necessary or desirable in order to perfect has been named loss payee under applicable policies of casualty insurance covering the Liens created Collateral under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering additional insured under all policies of liability insurance required by the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)Documents;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xiv) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its each jurisdiction in which it is required to be qualified to engage in business, including certified copies of organization each Loan Party’s Organization Documents, certificates of good standing and/or qualification to engage in business and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effecttax clearance certificates;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that other than as disclosed in the quarterly financial statements of the Borrower for the period ended June 30, 2001 or in other public disclosures made by the Borrower or as disclosed in writing to the Lenders on or before October 16, 2001, there has been no event or circumstance since the date of the Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(xxvi) a certificate opinions of a Financial Officer counsel to each Loan Party substantially in the forms of the US Borrower attesting to the Solvency of the US Borrower Exhibits E-1, E-2, and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateE-3;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvvii) evidence that the Canadian Borrower Existing Credit Facility has complied been or concurrently with Section 11.15(d)the Closing Date is being terminated and that satisfactory arrangements have been made for the payment in full of all obligations thereunder;
(xxviviii) endorsements to existing title insurance policies a copy of (A) summary appraisal reports with respect to all of the Mortgages timberlands owned by the Borrower and its Subsidiaries in Texas and Louisiana, and (B) detailed appraisal reports with respect to all of the Mortgaged Property, each in form and substance satisfactory to the Administrative AgentAgent and the Lenders and prepared by an independent appraiser retained by the Administrative Agent at the Borrower’s expense, and with respect to the appraisal of the Mortgaged Property, showing that the Collateral Coverage Ratio is at least 2.0:1.0;
(xxviiix) evidence that the Permitted Securitization has closed and that the Borrower has a Loan Notice for a BorrowingBorrowing Base (as defined in the Permitted Securitization Credit and Security Agreement) of at least $70,000,000;
(x) executed copies of the Second Amendment to Standby Purchase and Note Support Agreement, in form and substance acceptable to the Required Lenders; and
(xxviiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuers or the Swing Line Lender or any Lender Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date pursuant to the Loan Documents shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrowers;
(ii) Notes a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreementa reaffirmation agreement, duly executed by each Borrower domestic Loan Party and each GuarantorHoldings (the “Reaffirmation Agreement”), together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act UCC financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security and Pledge Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security and Pledge Agreement,
(B) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized, incorporated or maintains its principal place of business and such other searches that are required by the Canadian Debentures and Perfection Certificate or that the Canadian Debenture Pledge AgreementsAdministrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(C) copies to the extent applicable in the relevant jurisdiction, certified copy of the (i) register of mortgages and charges or equivalent document of each Luxembourg non-U.S. Loan Party and (ii) register of members of each non-U.S. Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to referencing the Borrower and security created by each other Loan Party as of in the Closing Date,Loan Documents;
(D) evidence the supplemental Singapore Collateral Documents dated as of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, Restatement Date; and
(E) evidence that all other action actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff lettersand Pledge Agreement, UCC-3 termination statements Dutch Collateral Documents and Personal Property Security Act discharge verification statements)Singapore Collateral Documents have been, or substantially concurrently therewith will be, taken;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such written resolutions, minutes of meetings, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) approving the entry into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) to the extent applicable in the relevant jurisdiction, such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly incorporated, organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivvii) a favorable opinion of (i) NautaDutilh, local counsel to in the Loan Parties in Canada Netherlands, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xvviii) a favorable opinion of ▇▇▇▇▇▇▇▇ Chance Pte. Ltd., local counsel in Singapore to the Loan Parties in Luxembourg Administrative Agent, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Loan Parties incorporated in Singapore and the Loan Documents governed by Singapore law as the Administrative Agent Required Lenders may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party the Borrower Representative either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower Representative certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) a certificate of a Financial Officer of the US Borrower certificates attesting to the Solvency of the US Borrower Loan Parties and the Restricted Subsidiaries, on their Subsidiaries taken as a consolidated basis, before and whole after giving effect to the execution and delivery Transaction, from a Responsible Officer of the Loan Documents and all Credit Extensions to be made on Borrower Representative, substantially in the Closing Dateform of Exhibit H;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender lenders loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxvxiii) evidence that the Canadian Borrower has complied obligations under the Existing Credit Agreement have been, or concurrently with Section 11.15(dthe Restatement Date are being, repaid in full (other than obligations continuing hereunder);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Restatement Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Restatement Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);.
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(fd) There has been no shall not have occurred since December 31, 2016 any event or circumstance since the date of the Audited Financial Statements condition that has had or could reasonably be reasonably expected to haveexpected, either individually or in the aggregate, to have a Material Adverse Effect;.
(ie) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents.
(f) The Existing Loans Administrative Agent and Existing L/C Advances (if any) the Lenders shall have been paid received copies of the financial statements referred to in full (or will be paid Section 5.05, each in full substantially concurrently form and substance satisfactory to each of them. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the closing of conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Restatement Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01), or substantially concurrent satisfaction, of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other customary means of electronic transmission (e.g., “pdf”) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyOfficer, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersArrangers:
(i) executed counterparts of this Agreement and Agreement, dated as of the GuarantyClosing Date, in such number as reasonably requested by the Administrative Agent;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions certificate of the Mortgages to reflect secretary or assistant secretary of the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each caseBorrower, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the each current Organization Documents (including, without limitation, a copy Document of the up-to-Borrower certified (to the extent applicable) as of a recent date articles by the Secretary of incorporation or articles State of association, as applicable, including all amendments thereto, the Commonwealth of each such entity) of each such entity as in effect on the date of that certificateKentucky, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent other governing body) of each such entity, as applicable, the Borrower authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party the Borrower is a party and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended (except as attached thereto) and are in full force and effect, effect and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, the Borrower (D) that attached thereto is a copy of together with a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar another officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer the secretary or assistant secretary executing any Loan Document or any other document delivered the certificate in connection herewith on behalf of each such entity, and this clause (Diii));
(iv) that attached thereto is a copy of a certificate of as to the good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority Borrower (in so-called “long-form” if available) as of a recent date, from the jurisdiction Secretary of formation or incorporation State of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation the Commonwealth of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse EffectKentucky;
(xiiiv) a favorable opinion of ▇(A) Cravath, Swaine & ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special New York counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit E-1 with such changes thereto, and with respect to such other matters concerning the Loan Parties Borrower and the Loan Documents Documents, as the Required Lenders Arrangers may reasonably request;
request and (xivB) a favorable opinion of (i) local in-house counsel to the Loan Parties in Canada Borrower, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit E-2 with such changes thereto, and with respect to such other matters concerning the Loan Parties Borrower and the Loan Documents Documents, as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Arrangers may reasonably request;
(xvvi) a favorable opinion of local ▇▇▇▇▇, Tarrant & ▇▇▇▇▇ LLP, special Kentucky counsel to the Loan Parties in Luxembourg Borrower, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit E-3 with such changes thereto, and with respect to such other matters concerning the Loan Parties and Borrower or the Loan Documents Documents, as the Administrative Agent Arrangers may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixvii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a4.01(d) and (bf) and Section 4.02(a) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;; and
(xxviii) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower “pay-off” letter in form and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available substance reasonably satisfactory to the Administrative Agent (including pursuant with respect to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessmentsAgreement having been, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion concurrently with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effectClosing Date being, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may requireterminated.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all reasonable out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) three Business Day Days prior to the Closing Date.
(d) After giving effect to the Transactions, plus such additional amounts of such fees, charges and disbursements as the Subsidiaries shall constitute its reasonable estimate of such fees, charges and disbursements incurred have outstanding no Indebtedness for borrowed money (excluding intercompany Indebtedness permitted by Section 7.02) or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);preferred stock other than Indebtedness for borrowed money listed on Schedule 7.02.
(e) The representations Administrative Agent and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that Lenders shall have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of received at least three business days prior to the Closing Date, except Date all documentation and other information about the Borrower as has been reasonably requested in writing at least 10 days prior to the extent Closing Date by the Administrative Agent or Lenders that such representations they reasonably determine is required by regulatory authorities under applicable “know your customer” and warranties specifically refer to an earlier dateanti-money laundering rules and regulations, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;including the USA PATRIOT Act.
(f) There has been no event All consents and approvals required to be obtained from any Governmental Authority or circumstance since other Person in connection with the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Transactions shall have been paid in full obtained or waived (if applicable), and all applicable waiting periods and appeal periods shall have expired.
(g) The Refinancing shall have occurred (or will be paid in full shall occur substantially concurrently with the closing Closing Date).
(h) There shall not have been any material adverse change in the business, financial condition or operations of the Borrower and its Subsidiaries, taken as a whole, since September 30, 2014. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement as of the date hereof) (which payment mayshall be deemed to have consented to, for the avoidance of doubtapproved or accepted or to be satisfied with, each document or other matter required thereunder to be made with the proceeds of consented to or approved by or acceptable or satisfactory to a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing.
Appears in 1 contract
Sources: Credit Agreement (Ashland Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender and the L/C Issuer and each Lender to make its any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedfollowing items, each properly executed by a Responsible Officer of the signing applicable Loan Party, each dated as of the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement a legal opinion from Kirkland and the GuarantyEllis LLP;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Notesecretary’s certificates, borrowing request and closing certificates set forth on the closing checklist attached hereto as Exhibit G;
(iii) [Reserved.]a solvency certificate in the form of Exhibit I; and
(iv) amendments the Loan Documents, except for those items that are specifically permitted herein to and reaffirmations of Mortgages, duly executed by be delivered after the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;Restatement Effective Date.
(vb) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party The representations and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name warranties of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed contained in blank,
(B) proper financing statements, Personal Property Security Act financing statements Article V or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each any other Loan Party Document, shall be true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to materiality) on and as of the Closing Date,
(D) evidence date of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationinitial Credit Extension, except to the extent that failure such representations and warranties specifically refer to do so could not reasonably an earlier date, in which case they shall be expected true and correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified as to have a Material Adverse Effectmateriality) as of such earlier date;
(xic) with respect to any Luxembourg Loan PartyNo Default or Event of Default shall have occurred and be continuing, a certificate of an authorized signatory of each or would immediately result from such entity dated as initial Credit Extension and the consummation of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties Transaction and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paidDocuments;
(d) Unless waived by the Administrative AgentAll accrued costs, the Borrowers shall have paid fees and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable out-of-pocket fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties the fees and expenses of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Dateadvisors) and (ii) each Existing Lender (including each Exiting Lender) other compensation due and payable to Administrative Agent, the Arrangers and the Lenders on or before the Restatement Effective Date shall have been paid (or will be paid substantially concurrently with deducted from the closing initial funding of this Agreement on the date hereofLoans hereunder), to the extent set forth in the Fee Letter (as defined as of the Restatement Effective Date) all accrued interest, accrued fees, and other amounts payable or otherwise invoiced at least two (other than 2) Business Days prior to the outstanding principal amount of Existing Loans and ExistingRestatement Effective Date (except as otherwise reasonably agreed by the Borrower Agent).
Appears in 1 contract
Sources: Fifth Amendment to Amended and Restated Credit Agreement (e.l.f. Beauty, Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer or Senior Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateDate or such other date acceptable to the Administrative Agent) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement Agreement, the U.S. Subsidiary Guaranty and the GuarantySecurity Agreement;
(ii) Notes as to each Borrower, a Note executed by the Borrowers such Borrower in favor of each Lender requesting a NoteNote at least two Business Days prior to the Closing Date;
(iii) [Reserved.]share certificates (if any) representing the Collateral pledged under the Security Agreement, together with stock powers executed in blank;
(iv) amendments to and reaffirmations such UCC financing statements or similar documents required under any other applicable Law in the name of Mortgages, duly executed by the applicable each Loan Party which is a pledgor or obligor under this Agreement and the Collateral Documents (as debtor) and the Administrative Agent and otherwise in form and substance reasonably satisfactory to (as secured party) describing the Administrative Agent, amending such terms and provisions of Collateral under the Mortgages to reflect the effectiveness of this Agreementapplicable Collateral Document;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, such UCC search reports as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative AgentAgent shall have requested;
(vi) notices of grant of security interest in the form required by the Security AgreementAgreement as are necessary, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to in the Administrative Agent’s sole discretion, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under Administrative Agent’s security interest in the Security Agreement, the Canadian Debentures United States registered intellectual property of Adtalem and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)U.S. Guarantors;
(vii) a Canadian Security Confirmation duly executed by each Canadian copies of insurance policies or certificates of insurance of Adtalem and the U.S. Guarantors evidencing liability and casualty insurance meeting the requirements set forth in the Loan PartyDocuments, including naming the Administrative Agent and its successors and assigns as additional insured (in the case of liability insurance) or lender’s loss payee (in the case of property insurance) on behalf of the Lenders;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xix) such documents and certifications as the Administrative Agent may reasonably require require, if applicable, to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor of the Loan Parties is validly existing, in good standing and qualified to engage in business in its the jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(xix) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion opinions of ▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇, General Counsel of Adtalem and ▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixi) a certificate of a Responsible Officer of each Loan Party Adtalem either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate (the “Closing Certificate”) signed by a Senior Responsible Officer of Adtalem to the US Borrower certifying effect that (A) that the conditions specified in Sections 4.02(a4.2(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements June 30, 2017 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender Substantially concurrently herewith, the Borrowers’ obligations under that certain Credit Agreement, dated as of March 31, 2015, shall have receivedbeen repaid in full, at least five all commitments thereunder shall have been terminated and all Liens securing the same shall have been released (5) days prior or arrangements satisfactory to Adtalem and the Closing Date, (i) all information requested by it pursuant to Section 11.19 and Administrative Agent for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;release shall have been made).
(ic) All Any and all fees and expenses required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(d) Unless waived by the Administrative Agent, the Borrowers Adtalem shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Adtalem and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guarantyother Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations executed counterparts of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each GuarantorCollateral Document, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein Interests pledged thereunder accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, instruments evidencing any Indebtedness debt pledged by the Loan Parties pursuant to the Security Agreement thereunder indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementCollateral Documents, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge AgreementsCollateral Documents,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect to the Borrower and each other initial Credit Extension, listing all effective financing statements filed in any jurisdiction that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements statements, bailees’ waiver and Personal Property Security Act discharge verification statementsconsent agreements and a landlord waiver for the locations listed on Schedule 4.01(a)(iii));
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, and each local counsel listed on Schedule 4.01(a)(vi), each addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
; and (xxC) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiariesthat, on a consolidated basis, before and after giving effect to the execution and delivery of the transactions contemplated hereby, each Loan Documents and all Credit Extensions to be made on the Closing DateParty is Solvent;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiiix) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxvx) evidence that the Canadian Borrower Existing Credit Agreement has complied been or concurrently with Section 11.15(d);the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released
(xxvixi) endorsements to existing title insurance policies Intercreditor Agreement with respect to Arch Insurance Company, duly executed by the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowingappropriate parties; and
(xxviiixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender the Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before July 31, 2006. Without limiting the generality of the Borrowers and provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
executed counterparts of each of (ivA) amendments to the Pledge Agreement and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(viB) the Security Agreement, duly executed by each Borrower and each GuarantorAgreements, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Collateral referred to therein in the Pledge Agreement, accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, all instruments evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement constituting Collateral indorsed in blankblank (except that the Pledged Collateral shall not include the Equity Interests of any Subsidiary until the expiration of all notice periods and the obtaining of appropriate consents under applicable Gaming Laws, as contemplated by Section 6.18),
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementAgreements, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement and the Security Agreement Agreements that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement and the Security Agreement Agreements has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiiv) a Canadian Security Confirmation deeds of trust, trust deeds, deeds to secure debt, mortgages, , in substantially the form of Exhibit H (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the properties listed on Schedule 4.01(a)(iv) (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by each Canadian the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all material defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the initial Credit Extension, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and reasonably acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Mortgages, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(viiiv) the Luxembourg Intellectual Property Security Confirmation Agreements, duly executed by the appropriate Loan Parties, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under each Luxembourg Loan PartyIntellectual Property Security Agreement has been taken;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor the Guarantors is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit K-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivix) a favorable opinion of (i) ▇▇▇▇▇ ▇▇▇▇▇▇, local counsel to the Loan Parties in Canada Nevada, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit K-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiix) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by each Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required, except for such consents, licenses or approvals as are listed on such certificate;
(xixxi) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements June 30, 2008 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) that as of the Closing Date, no action, suit, investigation or proceeding is pending or, to the best knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(xxxii) a certificate of a Financial Officer business plan and budget of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each year following the Closing Date during the term of this Agreement;
(xiii) a certificate from the chief financial officer of the Borrower attesting that the Borrower is, and the Loan Parties taken as a whole are, Solvent before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateTransaction;
(xxixiv) an environmental assessment report from an environmental consulting firm reasonably acceptable to the Audited Financial Statements Lenders, which report shall identify existing and potential environmental concerns and shall quantify, to the extent reasonably quantifiable, related costs and liabilities, associated with any real property subject to the any Mortgage, and the Unaudited Quarterly Financial StatementsLenders shall be satisfied with the nature and amount of any such matters and with the Borrower’s plans with respect thereto;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the effect consisting of certificates of insurance, naming the Administrative Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxvxvi) evidence that the Canadian Borrower Existing Credit Agreement has complied been, or concurrently with Section 11.15(d)the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(xxvixvii) endorsements to existing title insurance policies with respect such assurances as the Administrative Agent deems appropriate that the relevant Gaming Boards have approved the transactions contemplated by the Loan Documents to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowingextent that such approval is required by applicable Gaming Laws; and
(xxviiixviii) such other assurances, certificates, reports, audits, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived If requested by the Administrative AgentAgent prior to the Closing, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations and warranties All of the Borrowers information made available to the Administrative Agent prior to June 30, 2008, (other than projections and each other Loan Party contained in Article V or any other Loan Document are true forward looking statements) shall be complete and correct in all material respects respects; and no changes or developments shall have occurred, and no new or additional information shall have been received or discovered by the Administrative Agent or the Lenders regarding the Borrower and its Subsidiaries or the Transaction after June 30, 2008 that (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respectsA) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, aggregate could reasonably be expected to have a Material Adverse Effect;
Effect or (iB) The Existing Loans could reasonably be expected to adversely affect the Facilities or any other aspect of the Transaction, and Existing L/C Advances (if any) nothing shall have been paid come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe that the Information Memorandum, taken as a whole, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein not misleading in full light of all of the circumstances existing at the date of the Information Memorandum or has become misleading, incorrect or incomplete in any material respect; provided that (a) with respect to information relating to the Borrower’s industry generally and trade data which relates to a Person that is not the Borrower or will a Subsidiary thereof, the Borrower represents only that such information is believed by it in good faith to be paid accurate in full substantially concurrently all material respects, (b) with respect to financial statements, other than projected financial information, the closing Borrower represents only that such financial statements present fairly in all material respects the consolidated financial condition of this Agreement the applicable Person as of the date hereof) (which payment maydates indicated. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for the avoidance purposes of doubt, be made determining compliance with the proceeds of a Borrowing made under conditions specified in this Section 4.01, each Lender that has signed this Agreement on shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Parent Guaranty and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agentthereby, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) with respect to each Luxembourg Share Pledge Agreement, a copy of the shareholders’ register of the relevant Luxembourg Loan Party whose shares are pledged, evidencing the registration of the pledge, within 1 Business Day after the Closing Date;
(D) with respect to each Luxembourg Account Pledge Agreement, a copy of the notice of pledge sent to the relevant account bank in Luxembourg within 5 Business Days after the Closing Date and the acknowledgement and waiver of pre- existing rights over the accounts, duly executed by such account bank;
(E) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, searches dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(DF) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(EG) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(viiiv) a Canadian Security Confirmation Debenture and Canadian Debenture Pledge Agreement duly executed by each Canadian Loan Party;
(viiiv) the a Luxembourg Security Confirmation Agreement duly executed by each Luxembourg Loan Party;
(ixvi) [reserved];
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiix) with respect to any Luxembourg Loan Party, (i) a certificate certified, true, complete and up-to-date copy of an authorized signatory of extract from the Luxembourg Companies Register pertaining to each such entity dated as of not earlier than one Business Day before the date of this Agreement and certifying (A) that attached thereto is or, if not available, a true and complete copy of the Organization Documents certificate of good standing (includingcertificat de coutume) pertaining to each such entity and dated not earlier than one Business Day before the date of this Agreement, without limitation, (ii) a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (Biii) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, ; and (Evi) that attached thereto is a certified, true, complete and up-to-date copy certificate of an extract from the Luxembourg Companies Register pertaining to authorized signatory of each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) certifying that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effectitem (xvi) has been complied with;
(xiiix) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivxi) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request request, and (ii) local counsel Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and title of the Loan Documents real property intended to be subject to the fixed charges contemplated by the Canadian Debentures as the Administrative Agent Required Lenders may reasonably request;
(xvxii) a favorable an opinion of local NautaDutilh Avocats Luxembourg, as Luxembourg counsel to the Loan Parties in Luxembourg Parties, addressed to the Administrative Agent and each Lender, as to customary the matters concerning (i) the capacity of the Luxembourg Loan Parties and with respect to the Loan Documents they are entering into, (ii) enforceability of the Loan Documents governed by Luxembourg Law that they are entering into, (iii) lien creation and perfection and (iv) other customary matters as the Administrative Agent may reasonably request;
(xvixiii) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request[reserved];
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixiv) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party or Loan Parties of the Transaction and the execution, delivery and performance by such Loan Party or Loan Parties and the validity against such Loan Party or Loan Parties of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a4.02 (a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxvi) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Documents, any Credit Extensions Extension to be made on the Closing DateDate and the consummation of the Transaction, from the chief financial officer of the US Borrower or of the General Partner acting on its behalf;
(xxixvii) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxiixviii) an amendment to the extent not previously provided or made available Parent Credit Agreement and releases of the Loan Parties from all loan documents relating thereto and Liens granted by any Loan Party in connection therewith, in each case, in form and substance reasonably satisfactory to the Administrative Agent Agent;
(including pursuant to the Existing Credit Agreement), the xix) The Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixx) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxvxxi) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) received all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations11.19, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations Loan Parties shall have provided true, correct, and warranties complete copies of all Material Contracts to the Borrowers Administrative Agent and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except Lenders to the extent not previously provided (and the Administrative Agent and the Lenders agree that such representations and warranties specifically refer to an earlier date, any Material Contracts filed with the SEC in which case they connection with the Transaction shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier datedeemed delivered);
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) Transactions shall have been paid completed in full (or will be paid all material respects in full substantially concurrently accordance with the closing terms of the Transfer Documents and applicable Law. Without limiting the generality of the provisions of Section 10.03(e), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement as of shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) Administrative Agent shall have been paid (or will be paid substantially concurrently with received notice from such Lender prior to the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement
Conditions of Initial Credit Extension. The obligation obligations of each the L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder is are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the GuarantyBorrower;
(ii) Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes;
(iii) [Reserved.]
(iv) amendments to the Pledge and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantorthe Loan Parties, together with:
(A) certificates representing the Equity Interests of any Domestic Subsidiary pledged pursuant to the Pledge and Security Agreement (to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged such Equity referred to therein Interests are certificated) accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Pledge and Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casesearch results, dated as of a recent date with respect prior to the Borrower and each other initial Credit Extensions, together with copies of all effective Uniform Commercial Code financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as of the Closing Date,debtor, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)thereby;
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as Lender and in form and substance satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) financial projections and forecasts prepared by management of the Borrower and reasonably satisfactory to the Administrative Agent, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for the five year term of the Facilities;
(ix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, ; and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxx) a certificate of a Financial Officer duly completed Compliance Certificate as of the US Borrower attesting to the Solvency last day of the US Borrower and fiscal quarter of Equinix ended on September 30, 2014 (provided that the Restricted Subsidiaries, calculation of the Consolidated Net Lease Adjusted Leverage Ratio shall be on a consolidated basis, before and pro forma basis after giving effect to (A) the execution Indebtedness incurred (x) hereunder and delivery the use of the Loan Documents and all Credit Extensions to be made proceeds thereof on the Closing DateDate and (y) pursuant to the 5.375% Senior Notes Due 2022 and the 5.750% Senior Notes Due 2025 and (B) the redemption of the 7.00% Senior Notes Due 2021)), signed by a Responsible Officer of the Borrower;
(xxixi) pay-off statements and/or lien release authorizations from (A) the Audited Financial Statements Existing Administrative Agent with respect to interest, fees and expenses under the Unaudited Quarterly Financial StatementsExisting Credit Agreement and other Existing Loan Documents, and (B) such other secured parties of record shown on any of the financing statements referred to in subclause (iii)(C) above, to the extent such financing statements disclose Liens on the Collateral;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuer or the Swing Line Lender or any Lender Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and Agent, the Joint Left Lead Arrangers on Arranger or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related including, without limitation, any fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) Lenders as shall have been paid;separately agreed upon in writing in the amounts so specified.
(dc) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(ed) The representations and warranties Closing Date shall have occurred on or before December 29, 2014. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Equinix Inc)
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agent, the Arrangers and each of the Lenders:
(i) executed counterparts of this Agreement from the Borrower, the Administrative Agent and the Guarantyeach Lender;
(ii) Notes executed counterparts of the Guaranty from each Guarantor and the Administrative Agent;
(iii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note, with duplicate originals (if any) so marked;
(iii) [Reserved.]
(iv) amendments to a pledge and reaffirmations security agreement, in substantially the form of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance Exhibit G (with such changes as is reasonably satisfactory to the Administrative Agent) (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.13, amending such terms and provisions of in each case as amended, the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower Loan Party and each Guarantorthe Administrative Agent, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name Pledged Debt accompanied by undated instruments of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement transfer indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementslandlords’ and bailees’ waiver and consent agreements);
(viiv) a Canadian an intellectual property security agreement, in substantially the form of Exhibit 4, 5 or 6 to the Security Confirmation Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.13, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Canadian Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(viiivi) the Luxembourg Security Confirmation a Perfection Certificate, duly executed by each Luxembourg Loan Partythe Borrower;
(ixvii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiix) a favorable opinion of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP▇, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent, as to customary such other matters concerning the Loan Parties Borrower and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvx) a favorable opinion of local counsel to the Loan Parties in Luxembourg each jurisdiction listed on Schedule 4.01(a)(x), addressed to the Administrative Agent and each Lender, as Lender and in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixxii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections Section 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxiii) a certificate of a Financial Officer of the US Borrower certificates and letters attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution and delivery Transaction, from the chief financial officer of the Loan Documents and all Credit Extensions Borrower or another Responsible Officer acceptable to be made on the Closing DateAdministrative Agent;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixiv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, insurance naming the Administrative Agent and Collateral Agent, on behalf of the Secured PartiesLenders, as an additional insured insured, loss payee or lender loss payeemortgagee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxvxv) evidence that the Canadian Indebtedness listed on Schedule 1.01(a) has been or concurrently with the Closing Date is being terminated, all obligations owing thereunder by the Borrower has complied or any of its Subsidiaries are, concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages first Loan made hereunder, being paid in form full and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowingall Liens related thereto are or shall be terminated; and
(xxviiixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C Issuer, Issuer or the Swing Line Lender or any Lender Required Lenders reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All Any fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent);.
(d) The pro forma Consolidated Leverage Ratio for Measurement Period ending September 30, 2011 (which shall be calculated reflecting the Transactions on a Pro Forma Basis) was not more than 4.20 to 1.00, as certified and demonstrated in an officer’s certificate provided by a Responsible Officer of the Borrower.
(e) The representations Borrower shall have issued the Senior Unsecured Notes in an aggregate principal amount of at least $875,000,000 on terms and warranties conditions and subject to documentation satisfactory to the Administrative Agent.
(f) Each of the Borrowers Guarantor EBITDA Test and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects the Mortgage EBITDA Test (except for such representations and warranties that have calculated on a materiality or Material Adverse Effect qualification, which Pro Forma Basis after giving effect to the properties to be mortgaged listed on Schedule 6.13(a)) shall be true and correct in all respects) on and satisfied as of the date of the Closing Date, except as certified and demonstrated in an officer’s certificate provided by a Responsible Officer of the Borrower.
(g) There shall not exist (i) any bankruptcy proceeding pending against any Loan Party or any Subsidiary thereof or (ii) any actions, suits, Proceedings, claims or disputes pending or, to the extent that such representations and warranties specifically refer to an earlier dateKnowledge of the Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries, or, to the Knowledge of the Borrower, any Contract Provider, or affecting the Borrower or any Subsidiary or, to the Knowledge of the Borrower, any Contract Provider or any properties or rights of the Borrower or any Subsidiary or, to the Knowledge of the Borrower, any Contract Provider, that (i) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, (ii) could reasonably be expected to result in (A) the revocation, termination, cancellation or suspension of Medicaid Certification or Medicare Certification of such Person, which case they shall revocation, termination, cancellation or suspension could reasonably be true and correct in all material respects (except for such representations and warranties that likely to have a materiality or Material Adverse Effect qualificationEffect, or (B) the exclusion of such Person from participation in a Federal health care program, which shall exclusion could reasonably be true and correct in all respectslikely to have a Material Adverse Effect, or (c) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect;.
(h) A supplement to the Senior Notes Indenture to equally and ratably secure the Senior Notes as required thereby.
(i) The Existing Loans and Existing L/C Advances (if any) Borrower shall have been paid in full (or will be paid in full substantially concurrently received a rating with respect to the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) Facilities from S&P and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existing▇▇▇▇▇’▇.
Appears in 1 contract
Sources: Credit Agreement (Health Management Associates Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Paying Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Paying Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Paying Agent, each Lender and the Borrower;
(ii) Notes a Revolving Credit Note executed by the Borrowers Borrower in favor of each Lender requesting a Revolving Credit Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, Documents duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Paying Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementDocuments, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge AgreementsDocuments,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Paying Agent may deem necessary or desirable in order to permit the Paying Agent to promptly perfect the Liens created under the Security Agreement Documents has been taken (including the endorsement of notices on title documents and receipt of duly executed payoff letters, letters and UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Paying Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xv) such documents and certifications as the Administrative Paying Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivi) a favorable opinion of (A) ▇▇▇▇▇▇ & ▇and ▇▇▇▇▇▇, LLP, counsel to the Loan Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇, LLP, Maryland counsel to the Borrower, and (C) Liskow and ▇▇▇▇▇, Louisiana and maritime counsel to the Loan Parties, each addressed to the Paying Agent, the Co-Administrative Agent Agents and each LenderLender (and for the benefit of their respective successors and permitted assigns), as to customary the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixviii) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxix) a certificate of a Financial Officer business plan and budget of the US Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2008 through and including 2012;
(x) certificates attesting to the Solvency of the US Borrower and the Restricted SubsidiariesLoan Parties, on taken as a consolidated basis, before and whole (after giving effect to the execution and delivery repayment of the Loan Documents and all Credit Extensions existing Indebtedness to be made repaid on the Closing DateDate and the Indebtedness to be incurred on such date) from its chief financial officer;
(xxixi) the Audited Financial Statements Borrower’s environmental watch list report as of September 30, 2007, in form and substance reasonably satisfactory to the Unaudited Quarterly Financial StatementsAgents;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiiixii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Paying Agent, on behalf of the Secured PartiesLenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxvxiii) evidence that the Canadian Borrower Existing Credit Agreement has complied been, or concurrently with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a BorrowingClosing Date are being, released; and
(xxviiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Paying Agent, or any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Paying Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date and for which notices have been provided shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(dc) Unless waived by the Administrative Paying Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Paying Agent (directly to such counsel if requested by the Administrative Paying Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Paying Agent);.
(d) The Borrower shall have received not less than $300,000,000 of net cash proceeds from the issuance of the Senior Notes.
(e) The representations and warranties Closing Date shall have occurred on or before December 31, 2007. Without limiting the generality of the Borrowers and provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Paying Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s (or the Collateral Trustee’s on behalf of the Administrative Agent) receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agent, the Collateral Trustee (if applicable) and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
a security agreement, in substantially the form of Exhibit G (iv) amendments together with each other security agreement and security agreement supplement delivered from time to and reaffirmations of Mortgagestime after the Closing Date pursuant to Section 6.12, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the “Security Agreement”), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity Interests referred to therein (if such Pledged Equity Interests are certificated) accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement Pledged Debt indorsed in blank,
(B) copies of proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly authorized for filing on or before the day of the initial Credit Extension under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent or the Collateral Trustee may deem necessary or desirable advisable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date together with respect evidence reasonably satisfactory to the Borrower and each other Loan Party as of Administrative Agent that such financing statements have been filed on or before the Closing Date,
(C) completed Uniform Commercial Code lien search reports, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) the deposit account control agreements and securities account control agreements required to be delivered in accordance with the Security Agreement duly executed by the appropriate parties,
(E) copies of each Material Contract that is assigned to the Collateral Trustee pursuant to the Security Agreement, together with a consent to each such assignment in form and substance reasonably acceptable to the Administrative Agent and the Collateral Trustee duly executed by each party to such Material Contracts other than the Loan Parties, and
(F) evidence of the completion of that all other actions, recordings and or filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable advisable in order to perfect the Liens created under the Security Agreement has been taken taken;
(iv) deeds of trust, trust deeds, deeds to secure debt, mortgages, ship mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the forms of Exhibits ▇-▇, ▇-▇, ▇-▇ and H-4 (with such changes as may be satisfactory to the Administrative Agent and the Collateral Trustee and their counsel to account for local law matters) and covering the Mortgaged Properties (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered from time to time pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent or the Collateral Trustee may deem necessary or advisable in order to create a valid first and subsisting Lien (subject to Permitted Encumbrances and other Liens permitted under the Loan Documents) on the property described therein in favor of the Collateral Trustee for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including receipt endorsements for future advances under the Loan Documents and for zoning of the applicable property and such coverage for mechanics’ and materialmen’s Liens as is acceptable to the Administrative Agent) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or advisable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before the day of the initial Credit Extension, certified to the Collateral Trustee and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent and the Collateral Trustee by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent and the Collateral Trustee, showing all buildings and other improvements, the location of any recorded or visible easements, parking spaces, recorded or visible rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent and the Collateral Trustee,
(D) estoppel and consent agreements executed by each of the lessors of the Mortgaged Properties, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or advisable, in the Administrative Agent’s and the Collateral Trustee’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent and the Collateral Trustee,
(E) evidence of the insurance required by the terms of the Mortgages,
(F) an appraisal of each of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, which appraisals shall be from a Person acceptable to the Lenders, and
(G) evidence that all other action that the Administrative Agent or the Collateral Trustee may deem necessary or advisable in order to create valid first and subsisting Liens (subject to Permitted Encumbrances and other Liens permitted under the Loan Documents) on the property described in the Mortgages has been taken;
(v) an intellectual property security agreement, in substantially the form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered from time to time pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed payoff lettersby each Loan Party, UCC-3 termination statements and Personal together with evidence that all action that the Administrative Agent or the Collateral Trustee may deem necessary or advisable in order to perfect the Liens created under the Intellectual Property Security Act discharge verification Agreement has been taken;
(vi) an equity pledge agreement, in substantially the form of Exhibit J (the “Equity Pledge Agreement”), duly executed by Holdings and the Borrower, and certificates representing all of the Equity Interests in Borrower (if such Equity Interests are certificated) accompanied by undated stock powers executed in blank, together with evidence that all other actions that the Administrative Agent or the Collateral Trustee may deem necessary or advisable in order to perfect the Liens created under the Equity Pledge Agreement has been taken, including without limitation, copies of proper financing statements), duly authorized for filing on or before the day of the initial Credit Extension under the Uniform Commercial Code of all jurisdictions that the Administrative Agent or the Collateral Trustee may deem necessary or advisable in order to perfect the Liens created under the Equity Pledge Agreement, covering the Collateral described in the Equity Pledge Agreement, together with evidence reasonably satisfactory to the Administrative Agent that such financing statements have been filed on or before the Closing Date;
(vii) a Canadian Security Confirmation collateral trust agreement, in substantially the form of Exhibit K (the “Collateral Trust Agreement”), duly executed by Holdings, each Canadian Loan Party, the Collateral Trustee and the Senior Secured Notes Trustee;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xix) such documents and certifications as the Administrative Agent may reasonably require certifying as to evidence the accuracy and completeness of Holdings’ and each Loan Party’s Organization Documents and evidencing that Holdings and each Loan Party is duly organized or formed, and that each Borrower Holdings and each Guarantor Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization formation and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiix) a favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ LLP, counsel to Holdings and the Loan Parties, addressed to the Administrative Agent and each Lender, and addressing such matters concerning Holdings, the Loan Parties and the Loan Documents as the Lenders may reasonably request;
(xi) a favorable opinion of ▇▇▇▇▇▇▇▇ Carano Wilson LLP, local counsel to customary Holdings and the Loan Parties in Nevada, addressed to the Administrative Agent and each Lender, and addressing such matters concerning Holdings, the Loan Parties and the Loan Documents as the Lenders may reasonably request;
(xii) a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Louisiana, addressed to the Administrative Agent and each Lender, and addressing such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiixiii) a certificate of a Responsible Officer or the secretary of each Loan Party, (A) either (x) stating that such Loan Party either attaching copies of has received all Permits, consents (including governmental, shareholder and third party consents), licenses (including Gaming Licenses) and approvals required necessary or advisable in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such Permits, consents (including governmental, shareholder and third party consents), licenses (including Gaming Licenses) and approvals are in full force and effecteffect and attaching evidence of the foregoing as reasonably requested by the Administrative Agent, or (y) stating that no such Permits, consents (including governmental, shareholder and third party consents), licenses or (including Gaming Licenses) and approvals are so requiredrequired and (B) stating that all applicable waiting periods (if any) have expired without any action being taken by any Governmental Authority that could reasonably restrain, prevent or impose any material adverse conditions on the Loan Parties or the Transactions or that could reasonably seek or threaten any of the foregoing and no Law is applicable which could have such effect; provided that, notwithstanding the foregoing, receipt by the Borrower of approval of the Nevada Gaming Commission to the pledge of the Equity Interests in the Borrower by Holdings pursuant to the Equity Pledge Agreement shall not be a condition to closing; provided that, the Borrower shall have submitted an application for approval of the same along with all other information requested by the appropriate authorities;
(xixxiv) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxv) (A) pro forma consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries as at the Closing Date, and reflecting the consummation of the Transactions and (B) a certificate of a Financial Officer business plan and budget of the US Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the first two years following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement;
(xvi) certificates attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, each Loan Party before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing DateTransaction, from its chief financial officer;
(xxixvii) a Phase I environmental assessment report from an environmental consulting firm of nationally recognized standing, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any properties of the Audited Financial Statements Borrower or any of its Subsidiaries, and the Unaudited Quarterly Financial StatementsLenders shall be reasonably satisfied with the nature and amount of any such matters and with the Borrower’s plans with respect thereto;
(xxiixviii) to the extent not previously provided copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), any of its Subsidiaries as the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; andrequest;
(xxiiixix) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative AgentCollateral Trustee, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxivxx) [Reserved]copies of each of the Senior Secured Note Documents, duly executed by the parties thereto, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request;
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxviixxi) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and duly completed Compliance Certificate as of the date last day of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date fiscal quarter of the Audited Financial Statements that has had or could be reasonably expected to haveBorrower ended March 31, either individually or in the aggregate2011, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment maysigned by chief executive officer, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingchief financial
Appears in 1 contract
Sources: Credit Agreement (NGA Holdco, LLC)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to and reaffirmations of Mortgages, duly executed by the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement, duly executed by each Borrower and each Guarantor, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank or registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each case, dated as of a recent date with respect to the Borrower and each other Loan Party as of the Closing Date,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements);
(vii) a Canadian Security Confirmation duly executed by each Canadian Loan Party;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(x) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiv) a favorable opinion of (i) local counsel to the Loan Parties in Canada addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xx) a certificate of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any the L/C IssuerIssuers, the Swing Line Lender or any Lender the Required Lenders reasonably may requirerequire (including, without limitation, each of the documents, instruments and agreements listed in the List of Closing Documents attached hereto as Schedule 4.01).
(b) Each Lender The Administrative Agent shall have receivedreceived from the Company, at least five (5) days prior to the Closing Datein immediately available funds, (i) all information requested a commitment fee payable to each Lender party to the Existing Credit Agreement as of the date hereof in an amount equal to 0.100% of the amount, if any, by it which such Lender’s Commitment is increased over such Lender’s “Commitment” under the Existing Credit Agreement pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paidthis Agreement, (ii) all fees required an amendment fee payable to be paid each Lender party to the Lenders on or before Existing Credit Agreement in an amount equal to 0.030% of the Closing Date shall have been paidamount of such Lender’s “Commitment” under the Existing Credit Agreement, and (iii) all mortgage tax and related fees required an amendment fee payable to be paid with respect each Lender that is not a party to the Mortgages Existing Credit Agreement in an amount equal to the percentage agreed to between the Company and each such Lender on the amount of such Lender’s Commitment hereunder, (or any amendments or supplements theretoiv) the arrangement fee required under that certain letter agreement July 7, 2006 by and among Bank of America, N.A., Banc of America Securities LLC, and the Company and (v) all accrued and unpaid “Facility Fees” under the Existing Credit Agreement (regardless of whether such “Facility Fees” are then due and payable), all of which aforementioned fees shall have been paid;be fully earned and non-refundable when due and payable.
(dc) Unless waived by the Administrative Agent, the Borrowers Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent);
(e) The representations and warranties . Without limiting the generality of the Borrowers and provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties Lender that have a materiality or Material Adverse Effect qualification, which has signed this Agreement shall be true and correct in all respects) on and as of deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the date of the Closing Date, except Administrative Agent shall have received notice from such Lender prior to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the proposed Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and ExistingDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agents of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agents and each of the Lenderstheir legal counsel:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to each Agent, each Lender and the GuarantyBorrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
(iv) amendments to the executed Shared Security Agreement and reaffirmations of MortgagesNon-Shared Security Agreement, duly executed together with an acknowledgement by the applicable Loan Party and the Administrative JPMCB that JPMCB, in its capacity as Collateral Agent and otherwise in form and substance reasonably satisfactory to the Administrative hereunder, shall replace Bank One as “Collateral Agent, amending such terms and provisions ” for purposes of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Non-Shared Security Agreement, duly executed by each Borrower Non-Shared Grantor, Bank One, in its capacity as the existing “Collateral Agent” under the Non-Shared Security Agreement, and each GuarantorJPMCB, in its capacity as the Collateral Agent hereunder and replacement “Collateral Agent” thereunder, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein (and as defined) in the Non-Shared Security Agreement or the Shared Security Agreement, as the case may be, accompanied by undated stock powers executed in blank or registered in and instruments evidencing the name of such nominee or nominees Pledged Debt referred to (and as the Administrative Agent shall specify and instruments, if any, evidencing any Indebtedness pledged by the Loan Parties pursuant to the Security Agreement defined) therein indorsed in blank,
(B) to the extent not already duly filed pursuant to the Existing DHI Credit Agreement, proper financing statements, Personal Property Security Act financing statements or other filings in form appropriate duly prepared for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent Agents may deem necessary or desirable in order to perfect the Liens first (other than any Permitted Liens) priority liens and security interests created under the Non-Shared Security Agreement or the Shared Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements as applicable, covering the Collateral described in the Non-Shared Security Agreement or the Shared Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreementsas applicable,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCCto the extent available, Personal Property Security Act, federal and state tax and bankruptcy completed lien searches, in each case, dated as of a recent on or before the date with respect to the Borrower and each other Loan Party as of the Closing Dateinitial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Non-Shared Grantor or Shared Grantor as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect insurance required by Schedule 5.10,
(E) amendments to the Security Agreement that Control Agreements and Account Control Agreements referred to in the Administrative Agent may deem reasonably necessary or reasonably desirable Non-Shared Security Agreement, duly executed by the securities intermediaries and depositary banks, as applicable, referred to in order to perfect the Liens created therebyNon-Shared Security Agreement, as necessary, and
(EF) evidence that all other action that the Administrative Agent Agents may reasonably deem necessary or desirable in order to perfect the Liens first (other than any Permitted Liens) priority liens and security interests created under the Non-Shared Security Agreement and the Shared Security Agreement has been taken commenced (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statementsother than the filings referred to in clause (B) above);
(viiiv) a Canadian Security Confirmation supplements (the “Mortgage Supplements”) to the Mortgages set forth on Schedule 4.01(a)(iv), in substantially the form of Exhibit G (with such changes as may be required to account for local law matters), duly executed by each Canadian the appropriate Loan Party, together with:
(A) delivery of the Mortgage Supplements in the appropriate form for filing or recording in order to continue a valid first and subsisting Lien, subject only to (i) Permitted Encumbrances (as defined in the Mortgages) and (ii) Permitted Liens, in each case on the property described therein, in favor of the Collateral Agent or the Collateral Trustees, as the case may be, for the benefit of the appropriate Secured Parties and reasonable evidence that all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees required to be paid in connection with the filing or recording of such Mortgage Supplements shall be paid;
(viiiB) regarding all Real Property for which Mortgages were obtained in connection with the Luxembourg Security Confirmation Existing DHI Credit Agreement, (i) evidence in the form of updated title searches, title reports or “abstractor” certificates, “title” certificates or so-called “nothing further” certificates, as applicable, reasonably sufficient to determine whether each Loan Party and each of its Subsidiaries required to execute and deliver a Mortgage Supplement pursuant to this Agreement has good title in fee simple to, or valid leasehold interests in, all Collateral covered by the Mortgages (other than the properties comprised of “pipelines” or “gathering systems”) and (ii) a modification/date-down endorsement to each existing Mortgage Policy extending the effective date of the policy to the date of recording for the applicable Mortgage Supplement and insuring that that the modification of the insured mortgage does not impair the validity, enforceability or priority of the insured mortgage, as modified; and
(C) such other documents as may be reasonably necessary to record the Mortgage Supplements, to issue the modification/date-down endorsements, or to create, perfect or preserve the security interests granted by the Mortgages or the Mortgage Supplements.
(v) an amendment to the Collateral Trust Agreement, duly executed by each Luxembourg Loan Partythe appropriate parties in accordance with the Collateral Trust Agreement;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or assistant secretary of each Loan Party as the Administrative Agent Agents may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvii) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor the Guarantors is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiiviii) a favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLPL.L.P., counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agents;
(xivix) a favorable opinion of (i) appropriate local counsel to the Loan Parties in Canada the jurisdictions set forth on Schedule 4.01(a), addressed to the Administrative each Agent and each Lender, as in form and substance reasonably satisfactory to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgents;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are in full force and effect, or stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bc) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lenders shall have requested, including, without limitation, information as to obligations under Pension Plans, Multiemployer Plans (to the knowledge of any Loan Party), collective bargaining agreements and other arrangements with employees;
(xii) a Request for Credit Extension relating to the initial Credit Extension;
(xiii) a certificate of signed by a Financial Responsible Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made certifying that on the Closing DateDate the Indenture Lien Basket (based on the unaudited balance sheet of the Borrower for the fiscal quarter ended March 31, 2004) is at least $1,200,000,000;
(xxixiv) the Audited Financial Statements and the Unaudited Quarterly Financial Statements;
(xxii) to the extent not previously provided or made available to the Administrative Agent (including pursuant to the Existing Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and such other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, collateral documents as the Administrative Agent Agents may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; and
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxvii) a Loan Notice for a Borrowing; and
(xxviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or any Lender reasonably may requirerequest.
(b) Each Lender shall have received, at least five (5) days prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested at least five (5) Business Days prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, paid and (ii) all fees required to be paid to the Lenders on or before extent that written invoices have been provided, all costs and expenses of the Closing Date Agents shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;.
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) consistent with Section 11.04(a) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(ec) The representations and warranties Lenders shall be reasonably satisfied with the environmental affairs of the Borrowers Parent Guarantor and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingits Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc /Il/)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and Subsidiary Guaranty (or amendment thereto), sufficient in number for distribution to the GuarantyAdministrative Agent, each Lender and the Borrower;
(ii) Notes a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) [Reserved.]
an irrevocable proxy, pledge and security agreement, in substantially the form of Exhibit G (iv) amendments together with each other irrevocable proxy, pledge and security agreement and irrevocable proxy, pledge and security agreement supplement delivered pursuant to and reaffirmations of MortgagesSection 6.09, duly executed by in each case as amended, the applicable Loan Party and the Administrative Agent and otherwise in form and substance reasonably satisfactory “Security Agreement” or an amendment to the Administrative Agent, amending such terms and provisions of the Mortgages to reflect the effectiveness of this Agreement;
(v) mortgage tax affidavits or amendments to mortgage tax affidavits, as applicable, duly executed by the applicable Loan Party and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(vi) the Security Agreement), duly executed by each Borrower and each GuarantorLoan Party, together with:
(A) to the extent required thereby and not previously delivered to the Administrative Agent, certificates, if any, certificates representing the Pledged Equity referred to therein accompanied by undated stock transfer powers executed in blank or registered in or, if any of the name of such nominee or nominees as Pledged Equity shall be uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent shall specify that the security interest in such uncertificated securities has been transferred to and instruments, if any, evidencing any Indebtedness pledged perfected by the Loan Administrative Agent for the benefit of the Secured Parties pursuant to in accordance with Section 9-106 of the Security Agreement Uniform Commercial Code, and instruments evidencing the Pledged Debt indorsed in blank,
(B) proper financing statements, Personal Property Security Act financing statements or other filings Financing Statements in form appropriate for filing under the Uniform Commercial Code or the Personal Property Security Act, as applicable, of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements covering the Collateral described in the Security Agreement, the Canadian Debentures and the Canadian Debenture Pledge Agreements,
(C) copies of each Luxembourg Loan Party’s shareholder register and UCC, Personal Property Security Act, federal and state tax and bankruptcy lien searches, in each casecompleted requests for information, dated as on or before the date of a recent date with respect the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to the Borrower and each other in clause (B) above that name any Loan Party as debtor, together with copies of the Closing Datesuch other financing statements,
(D) evidence of (reserved),
(E) the completion of all other actionsControl Agreements (or amendments thereto, recordings and filings of or with respect to the Security Agreement that extent deemed necessary by the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect Agent) duly executed by the Liens created therebyappropriate parties, and
(EF) evidence that all other action action, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and Personal Property Security Act discharge verification statements)consent agreements) or arrangements therefor satisfactory to the Administrative Agent shall have been made;
(viiiv) a Canadian Security Confirmation first preferred fleet mortgage, in substantially the form of Exhibit H (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters or, as appropriate, an amendment to an existing first preferred fleet mortgage) and covering each of the Specified Rigs listed on Schedule 5.07 (together with each other mortgage and mortgage supplement or amendment delivered pursuant to Section 6.09, in each case as amended, the “Mortgages”), duly executed by each Canadian the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording with the United States Coast Guard and all other filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the “vessels” described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or arrangements for such payment satisfactory to the Administrative Agent shall have been made),
(B) evidence of the insurance required by the terms of the Mortgages, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken, including delivery of an abstract of title, certificate of ownership, copy of certificate of documentation, and copy of certificate of financial responsibility (for each jurisdiction where applicable) with respect to each Specified Rig;
(viii) the Luxembourg Security Confirmation duly executed by each Luxembourg Loan Party;
(ixv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(xvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xi) with respect to any Luxembourg Loan Party, a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents (including, without limitation, a copy of the up-to-date articles of incorporation or articles of association, as applicable, including all amendments thereto, of each such entity) of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers (or equivalent governing body) of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Luxembourg Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that attached thereto is a copy of a certificate of non-registration of judgments (certificat de non inscription d’une décision judiciaire), issued by the Luxembourg Companies Register with regard to each such entity dated not earlier than one Business Day before the date of this Agreement, (E) that attached thereto is a certified, true, complete and up-to-date copy of an extract from the Luxembourg Companies Register pertaining to each such entity dated not earlier than one Business Day before the date of this Agreement, (F) that attached thereto is a domiciliation certificate issued by the domiciliation agent of each Luxembourg Loan Party dated as of the Closing Date, and (G) that such Luxembourg Loan Party is not subject to nor, as applicable, does not meet or, to the best of its knowledge, threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally, is not in a state of cessation of payments (cessation de payments) and has not lost its commercial creditworthiness (ébranlement de credit) and to the best of its knowledge, no application has been made, as far as it is aware, by any other person entitled for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings;
(xii) with respect to each Loan Party (other than a Luxembourg Loan Party, which is addressed in clause (xi) above), a certificate of an authorized signatory of each such entity dated as of the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or managers of each such entity, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of each such entity, and (D) that attached thereto is a copy of a certificate of good standing or equivalent certificate of such Loan Party issued by the applicable Governmental Authority in the jurisdiction of formation or incorporation of such Loan Party and a similar certificate from each other jurisdiction where such Loan Party’s ownership, lease, or operation of properties or the conduct of its business requires such qualification, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect;
(xiiivii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP▇ L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary in substantially the form of Exhibit I-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xivviii) a favorable opinion of (i) local J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, associate general counsel to the Loan Parties in Canada Parties, addressed to the Administrative Agent and each Lender, as to customary in substantially the form of Exhibit I-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) local counsel to the Loan Parties in British Columbia, Canada as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xv) a favorable opinion of local counsel to the Loan Parties in Luxembourg addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a favorable opinion of local counsel to the Loan Parties in Oklahoma addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvii) a favorable opinion of local counsel to the Loan Parties in Wyoming addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xviiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixx) a certificate signed by a Responsible Officer of the US Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xxxi) a certificate copies of a Financial Officer of the US Borrower attesting to the Solvency of the US Borrower and the Restricted Subsidiaries, on a consolidated basis, before and after giving effect to the execution and delivery of the Loan Documents and all Credit Extensions to be made on the Closing Date;
(xxi) the Audited Financial Statements and unaudited interim consolidated financial statements of the Unaudited Quarterly Financial StatementsBorrower and its consolidated Subsidiaries for each fiscal quarterly period ended subsequent to December 31, 2011 as to which such financial statements are available, accompanied by a certificate of a Responsible Officer of the Borrower;
(xxiixii) to the extent not previously provided or made available consolidated balance sheet, and statements of earnings and cash flows of the Borrower, prepared on a pro forma basis, and projections of the revenues, expenses, and cash flows of the Borrower covering the period from the Closing Date through December 31, 2012, prepared on a quarterly basis for each fiscal year ending on December 31, 2013 and December 31, 2014 and an annual basis for each fiscal year December 31, 2015, December 31, 2016, and December 31, 2017 (the “Initial Projections”), prepared by a Responsible Officer of the Borrower having responsibility over financial matters, all in form and substance satisfactory to the Administrative Agent Agent;
(including pursuant xiii) the Initial Appraisal Report;
(xiv) if the initial Credit Extension shall be in an aggregate principal amount equal to or greater than $50,000,000, a Borrowing Base Certificate duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower relating to the Existing initial Credit Agreement), the Administrative Agent shall have received all existing Phase I environmental assessments and other audits, assessments, or reports relating to environmental conditions or compliance with Environmental Laws which have been previously conducted or other reports, in each case to the extent in the possession of the Borrowers, as the Administrative Agent may reasonably require and the Administrative Agent shall be satisfied in its reasonable discretion with the condition of the properties of the Borrowers and their Subsidiaries with respect to the Borrowers’ and their Subsidiaries’ (or their respective predecessors’) compliance with Environmental Laws; andExtension;
(xxiiixv) evidence that all insurance required to be maintained pursuant to the Loan Documents (including title insurance) has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lender loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute constitutes Collateral;
(xxiv) [Reserved];
(xxv) evidence that the Canadian Borrower has complied with Section 11.15(d);
(xxvi) endorsements to existing title insurance policies with respect to the Mortgages in form and substance satisfactory to the Administrative Agent;
(xxviixvi) a Loan Notice for a Borrowingduly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended September 30, 2012, signed by the chief financial officer of the Borrower; and
(xxviiixvii) such other assurances, certificates, documentsdocuments (including “know your customer” requirements), consents or opinions as the Administrative Agent, any the L/C IssuerIssuers, the Swing Line Lender or any Lender reasonably may require.
(b) Each Lender The Administrative Agent, Lenders and Arranger shall have received, at least five (5) days received all fees and other amounts due and payable on or prior to the Closing Date, (i) all information requested by it pursuant to Section 11.19 and for purposes of compliance with other applicable “know your customer” and anti-money laundering rules and regulationsincluding, to the extent requested at least five (5) Business Days invoiced prior to the Closing Date, and (ii) to the extent requested by such Lender, a Beneficial Ownership Certification in relation to each Borrower;
(i) All fees reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid to the Administrative Agent and the Joint Lead Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and (iii) all mortgage tax and related fees required to be paid with respect to the Mortgages (or any amendments or supplements thereto) shall have been paid;
(d) Unless waived by the Administrative Agent, the Borrowers shall have paid Borrower hereunder (including all such reasonable fees, charges and disbursements of counsel to the Administrative Agent (Agent, paid directly to such counsel if requested by the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document (a draft of which such Lender has reviewed) consistent with Section 11.04(a) or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the extent invoiced at least one (1) Business Day Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute Date specifying its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent);
(e) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) on and as of the date of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such earlier date;
(f) There has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(i) The Existing Loans and Existing L/C Advances (if any) shall have been paid in full (or will be paid in full substantially concurrently with the closing of this Agreement as of the date hereof) (which payment may, for the avoidance of doubt, be made with the proceeds of a Borrowing made under this Agreement on the Closing Date) and (ii) each Existing Lender (including each Exiting Lender) shall have been paid (or will be paid substantially concurrently with the closing of this Agreement on the date hereof) all accrued interest, accrued fees, and other amounts payable (other than the outstanding principal amount of Existing Loans and Existingobjection thereto.
Appears in 1 contract