CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the obligation of each Lender to make an Advance on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction (or waiver in accordance with Section 10.01) of such conditions precedent before or concurrently with the Closing Date): (a) The Administrative Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, with each Loan Document 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: (i) Executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.18. (iii) A security agreement in substantially the form of Exhibit D hereto (the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Initial Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank, (B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) completed Lien searches, dated on or before the Closing Date, listing all effective financing statements (according to the applicable filing office) filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements, (D) the Intellectual Property Security Agreement duly executed by each Loan Party, (E) evidence of the insurance required by the terms of the Security Agreement, (F) with respect to any Material Account, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank referred to in the Security Agreement, (G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and (H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements); provided that it being understood that to the extent the delivery of the stock certificates referred to in clause (A) above or the Deposit Account Control Agreements and Securities Account Control Agreements referred to in clauses (F) and (G) above are not or cannot be provided on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then such delivery shall not constitute a condition precedent to the availability of the Facilities on the Closing Date, but may instead be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion by the Administrative Agent. (iv) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Document to which it is or is to be a party. (v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Closing Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) where applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (2) as to the good standing of such Loan Party under the laws of the State of the jurisdiction of its incorporation or formation. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, dated the Closing Date (in which certificate the statements made shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true, correct and complete copy of the Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Loan Party. (vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (viii) A certificate, in substantially the form of Exhibit G, attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower. (ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for its fiscal year ended December 31, 2011, (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its fiscal year ended December 31, 2012 (other than the last fiscal quarter of 2012), for the period from the beginning of such fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, and (C) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, through December 31, 2016. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with GAAP. (x) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties, reasonably satisfactory to the Administrative Agent. (xi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer, certifying that the conditions set forth in Sections 3.01(b), (c), (d), (g) and (h) are satisfied. (b) Immediately following the Transactions, neither the Borrower nor any of its Subsidiaries shall have any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03. (c) Since December 31, 2012, there has been no Material Adverse Effect. (d) All material Governmental Authorizations and third party consents and approvals necessary to be obtained by any Loan Party in connection with the Loan Documents shall have been obtained and shall remain in effect. (e) All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) to the extent an invoice therefor is provided to the Borrower at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and the Sole Lead Arranger on or prior to the Closing Date, and all fees payable to the Lenders on or prior to the Closing Date, shall have been paid or shall be paid concurrently with the Closing Date. (f) The Administrative Agent shall have received 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, that the Administrative Agent has requested in writing at least five Business Days prior to the Closing Date. (g) The representations and warranties contained in each Loan Document are correct in all material respects on and as of such date and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except (x) to the extent any representation and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and (y) to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date. (h) No Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom.
Appears in 2 contracts
Sources: Credit Agreement (Polycom Inc), Credit Agreement (Polycom Inc)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the obligation of each Lender to make an Advance or the obligation of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction (or waiver in accordance with Section 10.01) of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, with each Loan Document 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:
(i) Executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.18.
(iii) A security agreement in substantially the form of Exhibit D hereto (the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Initial Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed Lien searches, dated on or before the Closing Date, listing all effective financing statements (according to the applicable filing office) filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,
(D) the Intellectual Property Security Agreement duly executed by each Loan Party,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) with respect to any Material Account, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank referred to in the Security Agreement,
(G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and
(H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements); provided that it being understood that to the extent the delivery of the stock certificates referred to in clause (A) above or the Deposit Account Control Agreements and Securities Account Control Agreements referred to in clauses (F) and (G) above are is not or cannot be provided on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then such delivery shall not constitute a condition precedent to the availability of the Facilities on the Closing Date, but may instead be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion by the Administrative Agent.
(iv) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Transactions Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Transactions Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Closing Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) where applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (2) as to the good standing of such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or formationincorporation.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretaryOfficer, dated the Closing Date (the statements made in which certificate the statements made shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true, correct and complete copy of the Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretaryOfficer, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Transactions Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of Exhibit G, attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower.
(ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for its fiscal year ended December 31, of 2011, (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its the fiscal year ended December 31, of 2012 (other than the last fiscal quarter of 2012), for the period from the beginning of such the fiscal year of 2012 to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, (C) a Pro Forma consolidated and consolidating balance sheet and related statements of income and cash flows for the Borrower and Pro Forma levels of Consolidated EBITDA for the last fiscal year covered by the audited financial statements described in clause (A) above and for the last nine-month period ended with the latest period covered by the unaudited financial statements required by clause (B) above, in each case after giving effect to the Transactions and (CD) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, through December 31, 2016. The financial statements referred to in clauses (A), (B) and (BC) shall be prepared in accordance with GAAP.
(x) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, P.C.▇▇ LLP, counsel for the Loan Parties, reasonably satisfactory to the Administrative Agent.
(xi) [reserved]
(xii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer, certifying that the conditions set forth in Sections 3.01(b), (c), (d), (g) and (he) are satisfied.
(b) Immediately following the Transactions, neither the Borrower nor any of its Subsidiaries shall have any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03.
(c) The Administrative Agent shall have received reasonably satisfactory 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.
(d) Since December 31, 20122011, there has been no Material Adverse EffectChange.
(de) All material Governmental Authorizations and third party consents and approvals necessary to be obtained by any Loan Party in connection with the Loan Documents shall have been obtained and shall remain in effect; and all applicable waiting periods in connection with the Transactions shall have expired or been terminated.
(ef) All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) to the extent an invoice therefor is provided to the Borrower at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and the Sole Joint Lead Arranger Arrangers on or prior to the Closing Date, and all fees payable to the Lenders and other co-managers on or prior to the Closing Date, shall have been paid or shall be paid concurrently with the Closing Date.
(fg) The Administrative Agent shall have received 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, that the Administrative Agent has requested in writing at least five Business Days prior to the Closing Date.
(g) The representations and warranties contained in each Loan Document are correct in all material respects on and as of such date and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except (x) to the extent any representation and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and (y) to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date.
(h) No Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom.
Appears in 1 contract
Sources: Credit Agreement (Neustar Inc)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the The obligation of each Lender to make an Advance on the occasion of the Initial initial Extension of Credit hereunder is subject to satisfaction of the satisfaction (or waiver in accordance with Section 10.01) of such following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Agent shall have received Except as otherwise specified by Lender, Lender's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, with each Loan Document properly executed by a Responsible Officer of the signing Loan PartyOfficer, each dated the Closing Date (oron, or in the case of certificates of governmental officialsthird-party certificates, a recent date recently before the Closing Date) Date and each in form and substance reasonably satisfactory to the Administrative AgentLender and its legal counsel:
(i) Executed executed counterparts of this Agreement., sufficient in number for distribution to Lender and Borrower;
(ii) The Notes payable such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Lender may require to establish the order identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iii) such evidence as Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax status certificates, and the like;
(iv) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(e) and (f) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2001 which has a Material Adverse Effect;
(v) an opinion of counsel to Borrower substantially in the form of Exhibit E; and
(vi) such other assurances, certificates, documents, consents or opinions as Lender reasonably may require.
(b) Borrower shall have terminated any commitments to lend or make other extensions of credit under the Existing Credit Agreement, and directed that the proceeds of the Lenders initial Extension of Credit hereunder shall be applied to repay in full all Indebtedness outstanding under the extent requested Existing Credit Agreement pursuant to a notice of termination substantially in the form of Exhibit F.
(c) Lender shall have received evidence satisfactory to it that Borrower shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings (other than the filing or recording of items described in clause (ii) below) that may be necessary or, in the opinion of Lender, desirable in order to create in favor of Lender a valid and (upon such filing and recording) perfected First Priority Lien in the entire Collateral. Such actions shall include the following:
(i) Delivery to Lender of (a) the results of a recent search, by the Lenders a Person satisfactory to Lender, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any personal or mixed property of any Loan Party, together with copies of all such filings disclosed by such search, and (b) UCC termination statements duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture filings disclosed in such search (other than any such financing statements or fixture filings in respect of Liens permitted to remain outstanding pursuant to the terms of Section 2.18.this Agreement);
(ii) Delivery to Lender of UCC financing statements duly executed by Borrower with respect to all Collateral of Borrower, for filing in all jurisdictions as may be necessary or, in the opinion of Lender, desirable to perfect the security interests created in such Collateral pursuant to the Collateral Documents; and
(iii) A security agreement Evidence of the deposit of Cash and Cash Equivalents in substantially an aggregate amount of $90,000,000 in an account or accounts maintained by Borrower with Lender or an Affiliate of Lender and the form completion of Exhibit D hereto (all other actions necessary to perfect Liens in respect of such Cash and Cash Equivalents pursuant to the “Security Agreement”), duly executed by each Loan Party, together with:Collateral Documents.
(Ad) certificates representing the Initial Pledged Equity referred Any fees required to therein accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed Lien searches, dated be paid on or before the Closing Date, listing all effective financing statements (according to the applicable filing office) filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,
(D) the Intellectual Property Security Agreement duly executed by each Loan Party,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) with respect to any Material Account, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank referred to in the Security Agreement,
(G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and
(H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements); provided that it being understood that to the extent the delivery of the stock certificates referred to in clause (A) above or the Deposit Account Control Agreements and Securities Account Control Agreements referred to in clauses (F) and (G) above are not or cannot be provided on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then such delivery shall not constitute a condition precedent to the availability of the Facilities on the Closing Date, but may instead be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion by the Administrative Agent.
(iv) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Closing Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) where applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (2) as to the good standing of such Loan Party under the laws of the State of the jurisdiction of its incorporation or formation.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, dated the Closing Date (in which certificate the statements made shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true, correct and complete copy of the Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of Exhibit G, attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower.
(ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for its fiscal year ended December 31, 2011, (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its fiscal year ended December 31, 2012 (other than the last fiscal quarter of 2012), for the period from the beginning of such fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, and (C) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, through December 31, 2016. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with GAAP.
(x) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties, reasonably satisfactory to the Administrative Agent.
(xi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer, certifying that the conditions set forth in Sections 3.01(b), (c), (d), (g) and (h) are satisfied.
(b) Immediately following the Transactions, neither the Borrower nor any of its Subsidiaries shall have any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03.
(c) Since December 31, 2012, there has been no Material Adverse Effect.
(d) All material Governmental Authorizations and third party consents and approvals necessary to be obtained by any Loan Party in connection with the Loan Documents shall have been obtained and shall remain in effectpaid.
(e) All accrued costsThe representations and warranties made by Borrower herein, fees and expenses (including legal fees and expenses and the fees and expenses of or which are contained in any certificate, document or financial or other advisors) to the extent an invoice therefor is provided to the Borrower statement furnished at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and the Sole Lead Arranger on any time under or prior to the Closing Date, and all fees payable to the Lenders on in connection herewith or prior to the Closing Datetherewith, shall have been paid or shall be paid concurrently with correct on and as of the Closing Date.
(f) The Administrative Agent Borrower shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing.
(g) Borrower shall have paid all Attorney Costs of Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Lender).
(h) Lender shall have received 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, that the Administrative Agent has requested in writing at least five Business Days a Request for Initial Extension of Credit on or prior to the Closing Date.
(g) The representations and warranties contained in each Loan Document are correct in all material respects on and as of such date and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except (x) to the extent any representation and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and (y) to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date.
(h) No Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom.
Appears in 1 contract
Sources: Credit Agreement (Broadcom Corp)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the obligation The agreement of each Lender Bank to make an Advance on the occasion initial extension of the Initial Extension of Credit hereunder credit requested to be made by it is subject to the satisfaction (or waiver in accordance with Section 10.01) of such conditions precedent before satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date):, of the following conditions precedent:
(a) The Administrative the Borrower, the Guarantors, the DIP Agent and all of the Banks shall have received executed and delivered this Agreement;
(b) the followingBorrower shall have delivered to the DIP Agent for the benefit of the Banks in sufficient counterparts for distribution to the Banks:
(i) the Notes (one for each Bank);
(ii) copies, certified as true, correct and complete by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of which resolutions regarding the transactions contemplated by this Agreement, duly adopted by the Board of Directors (or equivalent body) of the Borrower and each Guarantor and satisfactory in form and substance to the DIP Agent;
(iii) an incumbency and signature certificate for the Borrower and each Guarantor satisfactory in form and substance to the DIP Agent;
(iv) copies (executed or certified, as may be appropriate) of all legal documents or proceedings taken in connection with the execution and delivery of this Agreement and the other Loan Documents to the extent the DIP Agent may reasonably request; and
(v) a Borrowing Base Certificate showing the calculation of the Borrowing Base as of the Friday immediately preceding the Petition Date;
(c) the Interim Financing Order in the form of Exhibit G hereto after notice given and a hearing conducted in accordance with Bankruptcy Rule 4001(c) shall have been entered by the Bankruptcy Court and shall be originals in full force and effect and shall not have been amended, modified, stayed, vacated, reversed or telecopies rescinded in any respect;
(followed promptly by originalsd) unless otherwise specifieda cash management order including procedures requiring all proceeds of Collateral and all revenues, with each Loan Document properly executed by a Responsible Officer income and cash flow of the signing Loan PartyBorrower and the Guarantors to be deposited in a Collection Account or such other arrangement as is acceptable to the DIP Agent such that, each dated except with respect to the Closing Date ▇▇▇▇▇ Cash and Payroll Accounts, the DIP Agent attains exclusive dominion and control of such accounts and proceeds of collection deposited therein shall have been entered by the Bankruptcy Court and shall be in full force and effect and shall not have been amended, modified, stayed, vacated, reversed or rescinded in any respect;
(ore) receipt by the DIP Agent of the Budget, 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 Banks;
(f) the release contained in the Interim Financing Order of all claims and causes of action of the Debtors against the Pre-Petition Banks in respect of the Pre-Petition Loans, subject to the Lien Validation Process, shall be in effect;
(g) the DIP Agent shall have received all fees and other amounts then due and payable to it and to the Banks in connection with the execution and delivery of this Agreement and the transactions contemplated hereby, including the payment of the first installment of the facility fee payable pursuant to Section 3.7 hereof and the DIP Agent:'s fee payable pursuant to Section 3.2 hereof;
(h) the DIP Agent shall have received evidence of insurance required by Section 7.3 hereof;
(i) Executed counterparts the Borrower, the Guarantor, the Pre-Petition Agent and certain of this the Pre-Petition Banks shall have executed and delivered the Standstill Agreement.;
(iij) The Notes payable no trustee, or other disinterested person with expended powers pursuant to the order Section 1104(c) of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.18.
(iii) A security agreement in substantially the form of Exhibit D hereto (the “Security Agreement”)Bankruptcy Code, duly executed by each Loan Party, together with:
(A) certificates representing the Initial Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed Lien searches, dated on shall have been appointed or before the Closing Date, listing all effective financing statements (according to the applicable filing office) filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,
(D) the Intellectual Property Security Agreement duly executed by each Loan Party,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) designated with respect to any Material AccountDebtor or its respective business or Properties, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank referred to in the Security Agreement,
(G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and
(H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitationlimitation the Collateral, receipt of duly executed payoff letters no order shall be entered appointing such a trustee or other disinterested person and UCC-3 termination statements); provided that it being understood that to the extent the delivery of the stock certificates referred to in clause (A) above no motion by or the Deposit Account Control Agreements and Securities Account Control Agreements referred to in clauses (F) and (G) above are not or cannot be provided on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then such delivery shall not constitute a condition precedent to the availability of the Facilities on the Closing Date, but may instead be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion supported by the Administrative Agent.Debtors shall be pending seeking such relief;
(iv) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Closing Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) where applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (2) as to the good standing of such Loan Party under the laws of the State of the jurisdiction of its incorporation or formation.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, dated the Closing Date (in which certificate the statements made shall be true on and as of the Closing Date), certifying as to (Ak) the absence of any amendments to Borrower shall have reimbursed the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true, correct and complete copy of the Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation Pre-Petition Agent and the absence Pre-Petition Banks for all fees and expenses incurred by them, including the reasonable fees and expenses of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of Exhibit G, attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower.
(ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for its fiscal year ended December 31, 2011, (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its fiscal year ended December 31, 2012 (other than the last fiscal quarter of 2012), for the period from the beginning of such fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, and (C) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, through December 31, 2016. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with GAAP.
(x) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & and Cutler's local counsel, and FTI Consulting, Inc., in connection with the Pre-Petition Credit Agreement and the transactions contemplated hereby for which the Borrower has received an invoice (it being understood that such amounts paid remain subject to Bankruptcy Court approval);
(l) the Borrower shall have paid the reasonable costs and expenses (including the reasonable fees and expenses of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.C.▇▇▇▇▇▇▇ and Cutler's local counsel, counsel for and FTI Consulting, Inc.) incurred by the Loan Parties, reasonably satisfactory to Banks and the Administrative Agent.
(xi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer, certifying that the conditions set forth in Sections 3.01(b), (c), (d), (g) and (h) are satisfied.
(b) Immediately following the Transactions, neither the Borrower nor any of its Subsidiaries shall have any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03.
(c) Since December 31, 2012, there has been no Material Adverse Effect.
(d) All material Governmental Authorizations and third party consents and approvals necessary to be obtained by any Loan Party DIP Agent in connection with this Agreement and the Loan Documents transaction contemplated hereby for which the Borrower has received an invoice (it being understood that such amounts paid remain subject to Bankruptcy Court approval); and
(m) the DIP Agent's Liens in the Collateral shall have been obtained perfected in a manner satisfactory to it and shall remain in effectbe first priority Liens subject only to Permitted Liens.
(e) All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) to the extent an invoice therefor is provided to the Borrower at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and the Sole Lead Arranger on or prior to the Closing Date, and all fees payable to the Lenders on or prior to the Closing Date, shall have been paid or shall be paid concurrently with the Closing Date.
(f) The Administrative Agent shall have received 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, that the Administrative Agent has requested in writing at least five Business Days prior to the Closing Date.
(g) The representations and warranties contained in each Loan Document are correct in all material respects on and as of such date and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except (x) to the extent any representation and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and (y) to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date.
(h) No Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom.
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction (or waiver in accordance with Section 10.01) of such conditions precedent before or concurrently with the Closing Date):
(a) The Administrative Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, with each Loan Document 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:
(i) Executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.18.
(iii) A security agreement in substantially the form of Exhibit D hereto (the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Initial Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed Lien searchesrequests for information, dated on or before the Closing Date, listing all effective financing statements (according to the applicable filing office) 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 Intellectual Property Security Agreement duly executed by each Loan Party,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) with respect to any Material Account, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank referred to in the Security Agreement,
(G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and
(H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and letters, UCC-3 termination statements); provided that it being understood that to the extent any Lien search or Collateral (including the creation or perfection of any security interest and the delivery of the stock certificates referred to in clause (A) above or the Deposit Account Control Agreements and Securities Account Control Agreements referred to in clauses (F) and (G) above are above) is not or cannot be provided on the Closing Date (other than (i) Uniform Commercial Code Lien searches in the jurisdiction of formation of the Loan Parties, (ii) the pledge and perfection of Collateral with respect to which a Lien may be perfected solely by the filing of financing statements under the Uniform Commercial Code, and (iii) the pledge and perfection of security interests in the Equity Interests of the Borrower’s Domestic Subsidiaries by the delivery of stock certificates and stock powers) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision of any such delivery Lien search and/or Collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date, but may instead be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion by the Administrative Agent.
(iv) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Transactions Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Transactions Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Closing Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) where applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (23) as to the good standing of such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or formationincorporation.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretaryOfficer, dated the Closing Date (the statements made in which certificate the statements made shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true, true and correct and complete copy of the bylaws and other Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretaryOfficer, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Transactions Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of Exhibit G, attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower.
(ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Company for its fiscal year ended December 31, 2011of 2010, (B) unaudited consolidated balance sheets and related statements of income and cash flows of each of the Borrower and the Company for each fiscal quarter of the fiscal year of 2011 (ending prior to October 10, 2011), for the period from the beginning of the fiscal year of 2011 to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, (C) to the extent prepared by the Company or the Borrower, unaudited consolidated and consolidating balance sheets and related statements of income of each of the Borrower and the Company for each 2011 fiscal month (ending prior to October 11, 2011), (D) a Pro Forma consolidated and consolidating balance sheet and related statements of income and cash flows for the Borrower and Pro Forma levels of EBITDA for the last fiscal year covered by the audited financial statements described in clause (A) above and for the last twelve-month period ended with the latest period covered by the unaudited financial statements required by clause (B) above, in each case after giving effect to the Transactions, (E) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis (x) on an annual basis, through December 31, 2016 and (y) on a quarterly basis, through December 31, 2012, and (F) (x) not later than (1) with respect to the Company within one business day of such becoming available, and in any event not later than 30 days following the end of a fiscal quarter, unaudited consolidated balance sheets and related statements of income and cash flows of the Company for each fiscal quarter ended subsequent to October 10, 2011 and prior to the Closing Date and (2) with respect to the Borrower, when required to be delivered to the SEC, unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its fiscal year ended December 31subsequent to October 10, 2012 2011 and prior to the Closing Date and (other than the last fiscal quarter of 2012), for the period from the beginning y) within one business day of such fiscal year becoming available, (1) to the end extent prepared by the Company, unaudited consolidated balance sheets and related statements of such fiscal quarter and for the comparable periods income of the preceding Company for each fiscal yearmonth ended subsequent to October 10, 2011 and prior to the Closing Date, and (C2) forecasts to the extent prepared by the Borrower, unaudited consolidated balance sheets and related statements of the financial performance income of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basisfor each fiscal month ended subsequent to October 10, through December 31, 20162011. The financial statements referred to in clauses (A), (B), (C) and (BF) shall be prepared in accordance with GAAPaccounting principles generally accepted in the United States.
(x) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, P.C.▇▇ LLP, counsel for the Loan Parties, reasonably satisfactory to the Administrative Agent.
(xi) [reserved]
(xii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer, certifying that the conditions set forth in Sections 3.01(b), (cd), (de), (g) and (h) are satisfied.
(b) Immediately following the Transactions, neither the Borrower nor or any of its Subsidiaries shall have any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03.
(c) Since The Administrative Agent shall have received reasonably satisfactory evidence (i) that the loans outstanding under the Existing Credit Agreements have been, or concurrently with the Closing Date are being, repaid in full and such Existing Credit Agreements have been, or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreements have been or concurrently with the Closing Date are being released and (ii) of repayment of all other Existing Indebtedness (other than Surviving Indebtedness) and the discharge (or the making of arrangements for discharge) of all Liens in respect of such Indebtedness,
(d) There has not occurred (i) a material adverse change in the business, assets, financial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole, since December 31, 20122010 or (ii) since October 10, there 2011, any event, change, circumstance, occurrence, effect or state of facts that, individually or in the aggregate, has been no had or would reasonably be expected to have a Company Material Adverse Effect.
(de) All material Governmental Authorizations and third party consents and approvals necessary to be obtained by any Loan Party in connection with the Loan Documents shall have been obtained and shall remain in effect; and all applicable waiting periods in connection with the Transactions shall have expired or been terminated.
(ef) All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) to the extent an invoice therefor is provided to the Borrower at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and Agent, the Sole Lead Arranger on or prior to the Closing Date, and all fees payable to the Lenders on or prior to the Closing Date, Date shall have been paid or shall be paid concurrently with the Closing Date.
(fg) The Merger and the other Transactions shall be consummated prior to or substantially concurrently with the making of the Initial Extension of Credit on the Closing Date in accordance with the Merger Agreement in the form of the executed version thereof dated as of October 10, 2011 that have been approved by the Administrative Agent and Lead Arranger (collectively, the “Merger Documents”), without any waiver or amendment thereof or any consent thereunder that are, in any case, materially adverse to the Lenders without the reasonable consent of the Lead Arranger (not to be unreasonably withheld, delayed or denied).
(h) Except for any Default resulting from a breach of any representation or warranty (other than the representations and warranties set forth in Section 4.18), no Default has occurred and is continuing or would result from the Initial Extension of Credit.
(i) The Administrative Agent shall have received 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, that the Administrative Agent has requested in writing at least five Business Days prior to the Closing Date.
(g) The representations and warranties contained in each Loan Document are correct in all material respects on and as of such date and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except (x) to the extent any representation and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and (y) to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date.
(h) No Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom.
Appears in 1 contract
Sources: Credit Agreement (Neustar Inc)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the The obligation of each Lender to make an Advance on the occasion of the Initial initial Extension of Credit hereunder is subject to satisfaction of the satisfaction (or waiver in accordance with Section 10.01) of such following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Administrative Agent shall have received Except as otherwise specified by Lender, Lender's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, with each Loan Document properly executed by a Responsible Officer of the signing Loan Borrower Party, each dated the Closing Date (oron, or in the case of certificates of governmental officialsthird-party certificates, a recent date recently before the Closing Date) Date and each in form and substance reasonably satisfactory to the Administrative AgentLender and its legal counsel:
(i) Executed executed counterparts of this Agreement., sufficient in number for distribution to Lender and Borrower;
(ii) The Notes payable to an executed Borrower Pledge Agreement, substantially in the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.18.form attached hereto as Exhibit E;
(iii) A security agreement an executed Security Agreement, substantially in the form attached hereto as Exhibit F;
(iv) an executed Subsidiary Guarantee, substantially in the form attached hereto as Exhibit G;
(v) a Collateral Field Exam with results satisfactory in the sole discretion of Lender;
(vi) an appraisal of the Borrower's Membership lists with results satisfactory in the sole discretion of Lender;
(vii) a detailed Business Plan of the Borrower through June 30, 2001, including cash flow forecasts satisfactory in the sole discretion of Lender;
(viii) the Audited Financial Statements of the Borrower;
(ix) the available Quarterly Financial Statements and Monthly Financial Statements of the Borrower, including cash flow statements, for all quarters and months ended after December 31, 1999 and prior to the Closing Date;
(x) if requested by Lender, a Note executed by Borrower in favor of Lender, in a principal amount equal to the Commitment;
(xi) an officer's certificate of the Borrower and each of its Subsidiaries substantially in the form of Exhibit I and dated as of the date hereof, signed by the president or a vice-president or other Responsible Officer of the Borrower and the respective Subsidiary, and attested to by the secretary or assistant secretary of the Borrower and the respective Subsidiary, together with certified copies of the Borrower's and its Subsidiaries' certificate or articles of incorporation, bylaws, incumbency and resolutions;
(xii) evidence of the good standing and the qualification to engage in business of the Borrower and each of its Subsidiaries in the jurisdiction in which such Person is incorporated or domiciled and in each other jurisdiction in which it is required to be qualified to engage in business;
(xiii) a certificate signed by a Responsible Officer of Borrower certifying that the conditions specified in Sections 4.01(c) and (d) have been satisfied;
(xiv) a favorable opinion of counsel to Borrower and its Subsidiaries substantially in the form of Exhibit D hereto (the “Security Agreement”)hereto, duly executed by each Loan Party, together with:in form and substance satisfactory to Lender and its counsel;
(Axv) certificates representing certified copies of each material consent, license and approval required in connection with the Initial Pledged Equity referred to therein accompanied by undated stock powers executed in blank execution, delivery, performance, validity and instruments evidencing enforceability of this Agreement and the Initial Pledged Debt referred to therein, indorsed in blank,other Loan Documents;
(Bxvi) proper financing statements an officer's certificate, signed by a Responsible Officer of the Borrower, certifying that since March 31, 2000, no event has occurred which individually or in form appropriate for filing under the Uniform Commercial Code aggregate could have a Material Adverse Effect;
(xvii) a certified list of all jurisdictions the Responsible Officers and directors of the Borrower;
(xviii) written evidence that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed Lien searches, dated on or before the Closing Date, listing all effective financing statements (according to the applicable filing office) filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,
(D) the Intellectual Property Security Agreement duly executed by each Loan Party,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) with respect to any Material Account, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank referred to in the Security Agreement,
(G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and
(H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Existing Credit Agreement has been taken or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements); provided that it being understood that xix) evidence satisfactory to the extent Lender that ▇▇▇▇ Companies US, Inc., has agreed to accept (and the delivery of the stock certificates referred to in clause (A) above or the Deposit Account Control Agreements Borrower has executed and Securities Account Control Agreements referred to in clauses (F) and (G) above are not or cannot be provided on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then such delivery shall not constitute a condition precedent to the availability of the Facilities on the Closing Date, but may instead be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion by the Administrative Agent.
(iv) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Closing Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) where applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (2) as to the good standing of such Loan Party under the laws of the State of the jurisdiction of its incorporation or formation.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, dated the Closing Date (in which certificate the statements made shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (Bdelivered) a true, correct and complete copy of the Organization Documents of such Loan Party as promissory note in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of Exhibit GK, attesting attached hereto, under which promissory note no interim payments of principal or interest shall be due and payable until October 1, 2000, and such Indebtedness shall relate solely to the Solvency construction of real property of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower.
(ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for its fiscal year ended December 31, 2011, (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its fiscal year ended December 31, 2012 (other than the last fiscal quarter of 2012), for the period from the beginning of such fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, and (C) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, through December 31, 2016. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with GAAP.
(x) A favorable opinion of located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ , ▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇▇, P.C., counsel for the Loan Parties, reasonably satisfactory to the Administrative Agent.; and
(xixx) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officerother assurances, certifying that the conditions set forth in Sections 3.01(b)certificates, (c)documents, (d), (g) and (h) are satisfiedconsents or opinions as Lender reasonably may require.
(b) Immediately following the Transactions, neither Evidence that the Borrower nor any of its Subsidiaries shall have paid any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03.
(c) Since December 31, 2012, there has been no Material Adverse Effect.
(d) All material Governmental Authorizations and third party consents and approvals necessary fees required to be obtained by any Loan Party in connection with the Loan Documents shall have been obtained and shall remain in effect.
(e) All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) to the extent an invoice therefor is provided to the Borrower at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and the Sole Lead Arranger paid on or prior to the Closing Date, and all fees payable to the Lenders on or prior to the Closing Date, shall have been paid or shall be paid concurrently with before the Closing Date.
(fc) The Administrative Agent representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall have received all documentation be correct on 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, that the Administrative Agent has requested in writing at least five Business Days prior to as of the Closing Date.
(gd) The representations Each Borrower Party shall be in compliance with all the terms and warranties contained in each Loan Document are correct in all material respects on and as of such date and after giving effect to such Borrowing and to the application provisions of the proceeds therefromLoan Documents to which it is a party, as though made on and as no Default or Event of such date, except Default shall have occurred and be continuing.
(xe) Borrower shall have paid all Attorney Costs of Lender to the extent any representation invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and (y) to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier dateLender).
(h) No Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom.
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the The obligation of each Lender to make an Advance on the occasion of the Initial its initial Extension of Credit hereunder is subject to satisfaction of the satisfaction (or waiver in accordance with Section 10.01) of such following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Unless waived by Administrative Agent shall have received and Lenders, Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, with each Loan Document properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (oron, or in the case of certificates of governmental officialsthird-party certificates, a recent date recently before the Closing Date) Date and each in form and substance reasonably satisfactory to the Administrative Agent, Lenders and their legal counsel:
(i) Executed executed counterparts of this Agreement., sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) The Notes payable to the order executed originals of the Lenders Notes (to the extent so requested by the Lenders pursuant any Lender) executed by Borrower in favor of each Lender, each in a principal amount equal to the terms of Section 2.18.such Lender’s Commitment;
(iii) A security agreement executed counterparts of the General Security Agreement in substantially the form attached as Exhibit F hereto from each of Exhibit D hereto (the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Initial Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed Lien searches, dated on or before the Closing Date, listing all effective financing statements (according to the applicable filing office) filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,
(D) the Intellectual Property Security Agreement duly executed by each Loan Party,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) with respect to any Material Account, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties Borrower and each Pledged Account Bank referred to in the Security Agreement,
(G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and
(H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements); provided that it being understood that to the extent the delivery of the stock certificates referred to in clause (A) above or the Deposit Account Control Agreements and Securities Account Control Agreements referred to in clauses (F) and (G) above are not or cannot be provided on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then such delivery shall not constitute a condition precedent to the availability of the Facilities on the Closing Date, but may instead be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion by the Administrative Agent.Guarantor;
(iv) Certified copies executed counterparts of the resolutions of Stock Pledge Agreement in the Board of Directors of each Loan Party approving the Transactions and each Loan Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Loan Document to which it is or is to be a party.form attached as Exhibit E hereto;
(v) A copy executed counterparts of the Guaranty in the form attached as Exhibit G hereto from each Guarantor;
(vi) the original Fee Letter and the original Disclosure Letter;
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower (and each Guarantor) as Administrative Agent may require to establish the identities of and verify the authority and capacity of each such Responsible Officer thereof authorized to act as a Responsible Officer thereof; Credit Agreement Epicor Software Corporation
(viii) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower (and each Guarantor) is duly organized or formed, validly existing, in good standing and qualified to engage in business in Delaware and California, including certified copies of Borrower’s (and each Guarantor’s) certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(ix) a certificate signed by a Responsible Officer of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Closing Date Borrower certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) where applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (2) as to the good standing of such Loan Party under the laws of the State of the jurisdiction of its incorporation or formation.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, dated the Closing Date (in which certificate the statements made shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true, correct and complete copy of the Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of Exhibit G, attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower.
(ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for its fiscal year ended December 31, 2011, (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its fiscal year ended December 31, 2012 (other than the last fiscal quarter of 2012), for the period from the beginning of such fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, and (C) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, through December 31, 2016. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with GAAP.
(x) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties, reasonably satisfactory to the Administrative Agent.
(xi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer, certifying that the conditions set forth in Sections 3.01(b), (c), (d), (g) and (h) are satisfied.
(b) Immediately following the Transactions, neither the Borrower nor any of its Subsidiaries shall have any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03.
(c) Since December 31, 2012, there has been no Material Adverse Effect.
(d) All material Governmental Authorizations and third party consents and approvals necessary to be obtained by any Loan Party in connection with the Loan Documents shall have been obtained and shall remain in effect.
(e) All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) to the extent an invoice therefor is provided to the Borrower at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and the Sole Lead Arranger on or prior to the Closing Date, and all fees payable to the Lenders on or prior to the Closing Date, shall have been paid or shall be paid concurrently with the Closing Date.
(f) The Administrative Agent shall have received 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, that the Administrative Agent has requested in writing at least five Business Days prior to the Closing Date.
(g) The representations and warranties contained in each Loan Document made by Borrower herein are correct in all material respects on and as of such date and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except (x) to the extent any representation and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and Closing Date (y) except to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing or result from such proposed Extension of Credit, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(x) opinions of counsel to Borrower and any Subsidiary in form and substance satisfactory to Administrative Agent;
(xi) the Term Loans shall have received a rating of at least “B1” from ▇▇▇▇▇’▇ and “B+” from S&P at least five (5) days prior to the Closing Date; and
(xii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(hb) No Default has occurred Any fees (including, without limitation, those set forth in the Fee Letter) required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and is continuing or would result from such Borrowing or from the application of the proceeds therefromAdministrative Agent).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied or waived in accordance with Section 10.01 (and the The obligation of each Lender to make an Advance on the occasion of the Initial initial Extension of Credit hereunder is subject to satisfaction of the satisfaction (or waiver in accordance with Section 10.01) of such following conditions precedent before or concurrently with the Closing Date):precedent:
(a) The Unless waived by all Lenders (or by Administrative Agent shall have received with respect to immaterial matters, or items specified in subsections (iv) or (v) below, that the Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, with each Loan Document properly executed by a Responsible Officer of the signing Loan PartyOfficer, each dated on or about 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 AgentAgent and its legal counsel:
(i) Executed counterparts of this Agreement.Agreement and each other Loan Document, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) The Committed Loan Notes payable executed by Borrower in favor of each Lender requesting a Committed Loan Note, each in a principal amount equal to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.18.that Lender's Pro Rata Share;
(iii) Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Party as Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) Such evidence as Administrative Agent may reasonably require to verify that each Borrower Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including, without limitation, certified copies of each Borrower Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) A security agreement certificate signed by a Responsible Officer of Borrower certifying that (A) the conditions specified in Sections 4.01(e), 4.01(f) and 4.01(g) have been satisfied and (B) there has been no event or circumstances since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) Opinions of Counsel to the Borrower Parties substantially in the form of Exhibit D hereto F hereto;
(vii) Execution and delivery of the “Security Second Amended and Restated Credit Agreement with respect to the Revolving Credit Agreement satisfactory to Administrative Agent;
(viii) Execution and delivery of the Intercreditor Agreement”);
(ix) Audited consolidated financial statements of the Borrower, duly the REIT for fiscal years 1998 and 1999 and of Preferred Stock Subsidiaries for fiscal year 1999 only, and unaudited interim consolidated financial statements of the Borrower, the REIT and Preferred Stock Subsidiaries for each fiscal quarter following December 31, 1999, as available, which shall be reasonably satisfactory to Lenders;
(x) Written business plans for Borrower's fiscal years 2000-2002 in such detail as reasonably required by Administrative Agent including, among other things, written analysis of the business and prospects of the Borrower and its Subsidiaries for the period from the Closing Date through the Maturity Date, which shall be reasonably satisfactory to Lenders;
(xi) A certification and written analysis of the chief financial officer or treasurer of Borrower which, to Lender's satisfaction, evidences that Borrower and its Subsidiaries are, and shall remain through and including the Maturity Date, Solvent after giving effect to the Loans, the Oxford Acquisition, and the other transactions contemplated thereby;
(xii) Borrower shall have certified to Administrative Agent, and provided Administrative agent with evidence satisfactory to Administrative Agent of, the aggregate amount of Net Disposition Proceeds, Net Refinancing Proceeds, Net Issuance Proceeds and Net Indebtedness Proceeds generated from and after July 31, 2000 to and immediately prior to the Closing Date;
(xiii) Evidence satisfactory to Administrative Agent that Borrower shall have taken or caused to be taken all such actions, executed by each Loan Partyand delivered or caused to be executed and delivered all such agreements, together withdocuments and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of Administrative Agent, desirable in order to create in favor of Administrative Agent, for the benefit of Lenders, a valid and (upon such filing and recording) perfected first priority security interest in the Pledged Collateral comprising the Oxford Pledged Collateral and a perfected second priority security interest in the Pledged Collateral comprising the Non-Oxford Pledged Collateral. Such actions shall include the following:
(A1) Delivery to Administrative Agent of accurate and complete schedules to all of the applicable Collateral Documents; and
(2) Delivery to Administrative Agent of (a) certificates representing the Initial Pledged Equity referred to therein (which certificates shall be accompanied by irrevocable undated stock powers executed powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent) representing all capital stock pledged pursuant to the Borrower Pledge Agreement and (b) all promissory notes or other instruments (duly endorsed, where appropriate, in a manner satisfactory to Administrative Agent) evidencing the Initial any Pledged Debt referred to therein, indorsed in blank,Collateral;
(Bxiv) proper financing statements Evidence reasonably satisfactory to Administrative Agent of the prohibitions or restrictions on assignment, hypothecation, pledging or other encumbrance with respect to the Oxford Pledged Collateral, if any;
(xv) A pro forma Compliance Certificate for the succeeding two years after the Closing Date, which shall be in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the and substance satisfactory to Administrative Agent may deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,Agent; and
(Cxvi) completed Lien searchesA pro forma consolidated balance sheet of the Borrower as of June 30, dated 2000, adjusted to give effect to the closing of the Oxford Acquisition and the financings contemplated thereby as if such transactions had occurred as of such date.
(b) Any fees required to be paid on or before the Closing DateDate shall have been paid, listing including all effective financing statements (according to the applicable filing office) filed in the jurisdictions fees referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,Section 2.06;
(Dc) Administrative Agent shall have received evidence satisfactory to it that the Intellectual Property Security Agreement duly executed by each fees and related costs incurred in connection with the Loan, the Oxford Acquisition, and all other transactions contemplated thereby have not, and are not reasonably expected to, exceed $13,000,000 in the aggregate unless Borrower shall pay amounts in excess of $13,000,000 with funds other than Loan Party,proceeds;
(Ed) Administrative Agent shall have received evidence satisfactory to it that HUD has approved the transfer of the insurance required Oxford Assets contemplated by the terms of the Security Agreement,
(F) with respect Acquisition Agreement to any Material Account, a Deposit Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank referred to in the Security Agreement,
(G) with respect to any Material Account, a Securities Account Control Agreement referred to in the Security Agreement, duly executed by the applicable Loan Party and the applicable securities intermediary, and
(H) evidence that all other action that the Administrative Agent may deem reasonably necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements); provided that it being understood that to the extent the delivery of the stock certificates referred to in clause (A) above or the Deposit Account Control Agreements and Securities Account Control Agreements referred to in clauses (F) and (G) above are not or cannot be provided on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then such delivery shall not constitute a condition precedent to the availability of the Facilities occur on the Closing Date, but may instead to the extent HUD's approval is required; provided, however, that such approval shall not be provided within ninety (90) days after the Closing Date, subject to such extensions as may be agreed in its sole discretion by the Administrative Agent.
(iv) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Transactions and each Loan Document to which it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, required with respect to the Transactions and each Loan Document Oxford Assets which are subject to a post-closing escrow pursuant to the Acquisition Agreement, which it is or is to be a party.Oxford Assets are set forth on Schedule 4.01(d);
(ve) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan PartyThe representations and warranties made by Borrower herein, dated reasonably near the Closing Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file or which are contained in such Secretary’s office and (B) that (1) where applicableany certificate, such Loan Party has paid all franchise taxes to the date of such certificate and (2) as to the good standing of such Loan Party document or financial or other statement furnished at any time under the laws of the State of the jurisdiction of its incorporation or formation.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer in connection herewith or its secretary or assistant secretarytherewith, dated the Closing Date (in which certificate the statements made shall be true correct on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a true, correct and complete copy of the Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the Closing Date and (C) the good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation and the absence of any proceeding for the dissolution or liquidation of such Loan Party.
(vii) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer or its secretary or assistant secretary, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of Exhibit G, attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Transactions, from the Chief Financial Officer of the Borrower.
(ix) (A) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for its fiscal year ended December 31, 2011, (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each fiscal quarter of its fiscal year ended December 31, 2012 (other than the last fiscal quarter any representations and warranties made as of 2012)a specified date, for the period from the beginning which shall only be required to be correct as of such fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year, and (C) forecasts of the financial performance of the Borrower and its Subsidiaries on a combined consolidated basis on an annual basis, through December 31, 2016. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with GAAP.
(x) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties, reasonably satisfactory to the Administrative Agent.
(xi) A certificate of each Loan Party signed on behalf of such Loan Party by its Responsible Officer, certifying that the conditions set forth in Sections 3.01(bspecified date), (c), (d), (g) and (h) are satisfied.
(b) Immediately following the Transactions, neither the Borrower nor any of its Subsidiaries shall have any funded Indebtedness or outstanding Preferred Interests other than the Indebtedness permitted under Section 6.03.
(c) Since December 31, 2012, there has been no Material Adverse Effect.
(d) All material Governmental Authorizations and third party consents and approvals necessary to be obtained by any Loan Party in connection with the Loan Documents shall have been obtained and shall remain in effect.
(e) All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) to the extent an invoice therefor is provided to the Borrower at least one Business Day prior to the Closing Date and other compensation payable to the Administrative Agent and the Sole Lead Arranger on or prior to the Closing Date, and all fees payable to the Lenders on or prior to the Closing Date, shall have been paid or shall be paid concurrently with the Closing Date.;
(f) The results of a recent lien search in each relevant jurisdiction indicating that there are no Liens on the Oxford Pledged Collateral except for Liens securing Indebtedness listed on Schedules 7.01(d), (i), (k), or (m), or Indebtedness or Liens otherwise permitted under this Agreement or described on Schedule 4.01(f);
(g) Each Borrower Party shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party and any other material document relating to any other material financial obligation except as disclosed To The Best Knowledge of Borrower on Schedule 5.03-B attached hereto, and no Default or Event of Default shall have occurred and be continuing;
(h) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent);
(i) Administrative Agent shall have received evidence reasonably satisfactory to it that 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, that the Administrative Agent has requested in writing at least five Business Days prior conditions to the Closing Dateclosing and consummation of the Oxford Acquisition (other than with respect to the Oxford Assets subject to a post-closing escrow pursuant to the Acquisition Agreement, which Oxford Assets are set forth on Schedule 4.01(d), or the Partnership Tenders) shall have been irrevocably satisfied or irrevocably waived.
(gj) The representations and warranties contained in each Loan Document are correct in all material respects on and Such other assurances, certificates, documents, consents or opinions as of such date and after giving effect to such Borrowing and to Administrative Agent, or the application of the proceeds therefrom, as though made on and as of such date, except (x) to the extent any representation and warranty is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct on and as of the date of such Credit Extension in all respects and (y) to the extent any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent any of such representations and warranties is itself subject to a “materiality” or “Material Adverse Effect” standard, in which case such representation and warranty shall be true and correct in all respects) as of such earlier dateRequisite Lenders reasonably may require.
(h) No Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom.
Appears in 1 contract