Conditions Precedent to Initial Extension of Credit Sample Clauses: 350 Samples

Conditions Precedent to Initial Extension of Credit. The effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with such effectiveness or Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Joint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested pursuant to Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 2 contracts

Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)

Conditions Precedent to Initial Extension of Credit. The effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with such effectiveness or Initial Extension of Credit: (a) The Administrative ~~Agent~~ Agents shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Joint Lead Arrangers and the Administrative ~~Agent~~ Agents (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested pursuant to Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction 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 or organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative ~~Agent~~ Agents or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, ~~2010~~2006, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative ~~Agent~~ Agents and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative ~~Agent~~ Agents or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative ~~Agent~~ Agents and the Joint Lead Arrangers that ~~a nationally recognized Process Agent~~ CT Corporation System shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative ~~Agent~~ Agents and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative ~~Agent~~ Agents and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative ~~Agent~~ Agents and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2006. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative ~~Agent~~Agents) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative ~~Agent~~Agents, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the ~~Effective Date~~Initial Extension of Credit, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 2 contracts

Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint~~ Lead ~~Arrangers~~ Arranger and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested pursuant to Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent~~Agreement, ~~on behalf of the Lender Parties, as additional insured and loss payee~~ together with ~~such responsible and reputable~~ an insurance ~~companies or associations, and in such amounts and covering such risks, as is~~ broker's letter satisfactory to the Administrative ~~Agents~~ Agent as to the customary nature and adequacy of the ~~Joint Lead Arrangers~~Borrower's insurance, (F) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit C to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, (G) the Account Control Agreements referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (iv) An intellectual property security agreement in substantially the form of Exhibit F to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vivii) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the ~~Joint Lead Arrangers~~Administrative Agent, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~viii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~ix) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixx) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the ~~Joint~~ Lead ~~Arrangers~~ Arranger shall request. (xxi) Certificates, in substantially the form of Exhibit FG, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer~~, if any, or other Responsible Officer if none~~. (xixii) Audited annual financial statements dated December 31, ~~2010~~2003, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the ~~Joint~~ Lead ~~Arrangers~~Arranger, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~xiii) Evidence of insurance naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agent and the Lead Arranger. (xiv) Certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries as the Lead Arranger or the Administrative Agent shall request. (xv) A certificate of a Financial Officer of the Borrower, in form and substance satisfactory to the Lead Arranger and the Administrative Agent, demonstrating that the aggregate of (i) 85% of the book value of the accounts receivable, (ii) 50% of the book value of the inventory and (iii) the lesser of (x) 50% of the book value of the property, plant and equipment (in each case as such book value is determined in accordance with GAAP) of the Loan Parties and (y) $100 million exceeds the aggregate principal amount of the Revolving Credit Facility. (xvi) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries as the Lead Arranger or the Administrative Agent shall request. (xvii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xviii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP~~ LLC and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~▇▇ Traurig LLP~~ , counsel for the Loan Parties, in substantially the forms of respectively Exhibits ~~G-1~~ H-1 and ~~G-2~~ H-2 hereto and as to such other matters as the Administrative Agent or the ~~Joint~~ Lead ~~Arrangers~~ Arranger may reasonably request. (~~xiv~~xix) Evidence satisfactory to the Administrative Agent and the ~~Joint~~ Lead ~~Arrangers~~ Arranger that ~~a nationally recognized Process Agent~~ CT Corporation System shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the ~~Joint~~ Lead ~~Arrangers~~ Arranger shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s 's Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the ~~Joint~~ Lead ~~Arrangers~~ Arranger shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the ~~Joint~~ Lead ~~Arrangers~~Arranger. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2003. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the ~~“Disclosed Litigation”~~"DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint~~ Lead ~~Arrangers~~ Arranger and the Administrative Agent) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any adverse action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the ~~Joint~~ Lead ~~Arrangers~~ Arranger and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the ~~Joint~~ Lead ~~Arrangers~~Arranger, the Agents and the Lender Parties and all accrued expenses of the ~~Joint~~ Lead ~~Arrangers~~ Arranger (including the accrued fees and expenses of counsel to the ~~Joint~~ Lead ~~Arrangers~~ Arranger and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters Initial Extension of Credit ~~hereunder is acceptable to the Paying Agent),~~ and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 2 contracts

Sources: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section ~~2.16~~2.15. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of ~~Credit, listing the~~ Credit and all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ 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 completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (EF) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement, (G) the Deposit Account Control Agreements referred to in the Security Agreement, duly executed by the Collateral Agent, ~~on behalf of~~ the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents applicable Loan Party and the ~~Joint Lead Arrangers, and~~applicable deposit account bank, (FH) the Securities Account Control Agreement referred to in the Security Agreement, duly executed by the Collateral Agent, the applicable Loan Party and the applicable securities intermediary, (I) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors (or ~~of the members or managers~~ other equivalent governing board) of each Loan Party approving the Transaction and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (to the extent the following are matters so certified by the relevant Secretary of State) (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or such other equivalent positions), dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be be, true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the ~~bylaws~~ bylaws, operating agreement or ~~operating agreement, as applicable,~~ partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~incorporation or organization and good standing or valid existence of such Loan Party as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a an Event of Default. (~~viii~~vi) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixvii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (xviii) ~~Certificates, in substantially the~~ A form of ~~Exhibit F~~certificate of merger or other confirmation satisfactory to the Lender Parties (the "Certificate of Merger"), to be filed no later than one Business Day after Closing. (ix) Certificates in form and substance satisfactory to the Lender Parties, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries~~(other than Hydrocarbon Technologies, ~~taken as a whole,~~ Inc.) immediately before and after giving effect to the Transaction, from ~~its~~ the Borrower's Chief Financial ~~Officer~~Officer with respect to the Borrower and its Subsidiaries (other than Hydrocarbon Technologies, ~~if any~~Inc.), or individually and from the Company's Chief Financial Officer with respect to the Company and its Subsidiaries (other ~~Responsible Officer if none~~than Flexcrete LLC), individually. (xix) ~~Audited annual~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, reaudited financial statements ~~dated December~~ of the Borrower and its Subsidiaries for the period ended September 30, 2001 and the financial review of the Borrower and its Subsidiaries for the six-month period ended March 31, ~~2010~~2002, interim financial statements of the Borrower and its Subsidiaries dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the Borrower and ~~its Subsidiaries and~~ forecasts prepared by management of the ~~Borrower~~Company, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (xi) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties , including, without limitation, business interruption insurance. (xii) A certified copy of the Material Contract. (xiii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xiv) ~~Favorable opinions~~ An opinion of Pillsbury Winthrop LLP, counsel for the Borrower and its Subsidiaries, addressed to the Agents and the Lender Parties and in substantially the form of Exhibit J-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xv) An opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP~~ counsel for the Company and its Subsidiaries, addressed to the Agents and the Lender Parties and in substantially the form of Exhibit J-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xvi) An opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇~~▇ Traurig LLP~~ , internal counsel for the ~~Loan Parties~~Borrower and its Subsidiaries, addressed to the Agents and the Lender Parties and in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit J-3 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (~~b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be reasonably satisfied with any changes occurring on or after July 15, 2002 in the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and ~~each such Subsidiary and~~ of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and ~~that~~ all ~~Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers~~commitments relating thereto terminated. (ed) Before giving effect to the Transaction, there shall have occurred no (i) Material Adverse Change and (ii) no material adverse change in the business, condition (financial or otherwise), operations, performance, or properties of the Company and its Subsidiaries, taken as a whole since December 31, ~~2010~~2001. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or or, to the Borrower's knowledge, threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse Effect ~~other than~~ or a material adverse effect on the ~~matters described on Schedule 4.01(f~~business, condition (financial or otherwise) ~~hereto (~~operations, performance or prospects of the ~~“Disclosed Litigation”)~~ Company and its Subsidiaries, taken as a whole or (ii) ~~purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of~~ materially adversely affects the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All ~~governmental~~ Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers~~ Lender Parties) (other than any such consents and approvals the ~~Administrative Agent~~absence of which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect or a material adverse effect on the business, condition (financial or otherwise), operations, performance or properties of the Company and its Subsidiaries, taken as a whole) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (g) All of the Pre-Commitment Information shall be true and correct in all material aspects and the Lender Parties shall not have discovered information (whether (x) through the completion by the Lender Parties of their (i) bring-down business due diligence with respect to the Borrower, the Company and their respective subsidiaries, (ii) bring-down accounting due diligence with the Borrower's and the Company's auditors and (iii) legal due diligence with respect to the assets and businesses of the Borrower, the Company and their respective subsidiaries (in each case in scope satisfactory to them) or (y) otherwise which the Lender Parties reasonably believe in good faith to be materially negative information with respect to the Transaction or the business, condition (financial or otherwise), operations, performance, properties or prospects of (A) the Borrower and its subsidiaries, taken as a whole, or (B) the Company and its subsidiaries, taken as a whole. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The ~~Refinancing~~ Merger shall have been consummated ~~or shall be consummated or concurrently consummated~~ in accordance with the ~~Effective Date~~terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any term, provision or condition set forth therein, and in compliance with all ~~advances and~~ applicable laws (other ~~amounts owing under~~ than any such violations which could not reasonably be expected to have, either individually or in the ~~Existing Credit Agreement shall have been repaid in full~~aggregate, a Material Adverse Effect or a material adverse effect on the ~~commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled~~ business, condition (financial or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agentotherwise), operations, performance or properties of the Company and ~~all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated~~its Subsidiaries, taken as a whole). (j) Other than the amendment to the Merger Agreement dated as of the date hereof, the Merger Agreement has not been amended since July 15, 2002 and shall be in full force and effect. (k) The ~~Lenders~~ Notice of Acceptance shall have been delivered to the Depositary. (l) The Borrower shall have received ~~all documentation~~ issued debentures as consideration for the Merger in amount of not less than $20,000,000. (m) Bank of America shall have delivered a pay-off letter in respect of its Credit Agreement dated as of March 4, 1998 with ISG Resources Inc., as amended and ~~other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations~~restated, ~~including~~ within two Business Days of the ~~Patriot Act~~date of Closing.

Appears in 1 contract

Sources: Credit Agreement (Headwaters Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ each Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The ~~Notes~~ Notes, if any, payable to the order of the ~~Lenders to the extent requested pursuant to Section 2.16~~Lenders. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each ~~Loan Party~~Grantor (as defined therein), together with: (A) certificates representing the Pledged ~~Shares referred to therein accompanied~~ Equity accompanied, where applicable, by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing statements, ~~duly filed on or before the day of the Initial Extension of Credit~~ in form sufficient for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first~~ priority of the liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any ~~Loan Party~~ Borrower as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (FE) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements)~~statements. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each initial Loan Party approving the Transaction 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 Transaction and each Loan Document to which it is or is to be a party. (v) A Except as provided in Section 5.01(t), a copy of a certificate of the Secretary of State or similar governmental authority of the jurisdiction of incorporation or organization of each initial Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan ~~Party and each amendment thereto~~ Party, as amended through the date of such certificate, on file in such Secretary’s 's or similar office ~~and~~ and, in the case of each initial Loan Party that is organized under the laws of a jurisdiction located within the United States, (B) that (1) ~~such amendments are the only amendments to such Loan Party’s Organizational Documents on file in such Secretary’s office, (2) if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C2) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each initial Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ 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 and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of ~~Credit~~ Credit, other than any such representations or warranties that, by their terms, refer to a specific date other than the date of the Initial Extension of Credit, in which case as of such specific date, and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each initial Loan Party 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. (ixviii) ~~Certified copies~~ A certificate from the Chief Financial Officer of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) CertificatesMII, in substantially the form of Exhibit FF hereto, respectively, attesting to the Solvency of ~~each Loan Party individually~~ MII and ~~together with~~ its Subsidiaries, taken as a whole, before and after giving effect to the Transaction~~, from its Chief Financial Officer, if any, or other Responsible Officer if none~~. (xiix) ~~Audited annual financial statements dated December 31, 2010, interim financial statements dated~~ Evidence of insurance naming the ~~end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements~~ Collateral Agent as additional insured and loss payee with respect to the ~~Borrower~~ Collateral with such responsible and ~~its Subsidiaries~~ reputable insurance companies or associations, and ~~forecasts prepared~~ in such amounts and covering such risks as are agreed to by ~~management of~~ the ~~Borrower~~parties hereto, ~~in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers~~including, ~~of balance sheets~~without limitation, ~~income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~business interruption insurance. (~~xii~~x) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xi) ~~Favorable opinions~~ A favorable opinion of (A) Baker Botts, L.L.P., counsel for MII, in substantially the f▇▇▇ ▇f ▇▇▇▇bit G-1 hereto and (B) John T. Nesser, General Counsel of MII, in substantially the ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ G-2 hereto. (xii) A favorable opinion of Durling & Durling, Panamanian counsel to the Loan Parties, i▇ ▇▇▇▇▇~~▇▇, LLP and ▇▇▇▇~~ant▇▇▇▇▇ ~~Traurig LLP counsel for the Loan Parties, in substantially the forms~~ ▇he form of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereofExhibit H hereto. (b) ~~The Administrative Agent~~ MII shall have made the MII Loans available to each of BWXT and ~~the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party~~ JRMSA, and each of ~~its Subsidiaries~~ BWXT and JRMSA shall have borrowed, or shall borrow contemporaneously with the ~~Equity Interests in which Subsidiaries are being pledged pursuant~~ Initial Extension of Credit, the full amount of MII Loans made available to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalizationit. (c) ~~All Equity Interests~~ On or prior to the Effective Date, all outstanding letters of credit issued for the ~~Guarantors shall~~ account of MII or its Subsidiaries under the McDermott Credit Agreement will be ~~owned by the Borrower or~~ required to either be transferred t▇ ▇▇▇ account of one or more ~~of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created~~ Borrowers under the ~~Loan Documents~~Facilities or to be fully cash collateralized on terms reasonably satisfactory to the Lender Parties. (d) ~~The Administrative Agent and~~ MII shall have deposited $6,000,000 into the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead ArrangersMizuho Cash Collateral Account. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The ~~Borrower~~ Borrowers shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Omnibus Credit Agreement (McDermott International Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ each Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) ~~The~~ In addition to its receipt of executed counterparts of this Agreement by the Borrower and each Lender Party, the Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by the Borrower and each ~~Loan Party~~Restricted Subsidiary of the Borrower, as grantors thereunder, together with: (A) certificates representing ~~the~~ any Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing ~~the~~ any Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of ~~Credit,~~ Credit listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any ~~Loan Party~~ of its Restricted Subsidiaries as debtor, together with copies of such other financing statements, (D) evidence ~~of the completion of~~ that all instruments and documents sufficient for all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder have been delivered to the Administrative Agent, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been ~~taken~~ taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) ~~A guaranty~~ An intellectual property security agreement in substantially the form of Exhibit ~~E hereto~~ C to the Security Agreement (together with each other ~~guaranty~~ intellectual property security agreement and ~~guaranty~~ intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “~~Subsidiary Guaranty~~Intellectual Property Security Agreement”), duly executed by the Borrower and each ~~Subsidiary Guarantor~~of its Restricted Subsidiaries, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ transaction contemplated hereby 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 ~~Transaction~~ transaction contemplated hereby 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 or~~ organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ other constitutive document 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 ~~Organizational Documents~~ charter or other constitutive document on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or other constitutive document 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 and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing document 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixviii) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other ~~documents delivered in connection therewith~~ information regarding each Loan Party and its Restricted Subsidiaries as the Administrative Agent or shall have requested, including, without limitation: (A) the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual audited Consolidated financial statements ~~dated~~ of the Borrower for the Fiscal Years ended December 31, ~~2010~~2001, ~~interim~~ December 31, 2002 and December 31, 2003 and unaudited Consolidated financial statements ~~dated~~ for the ~~end of the most recent~~ fiscal ~~quarter for which financial statements are available~~quarters ended March 31, 2004, June 30, 2004 and September 30, 2004, and (B) pro forma ~~consolidated~~ financial statements as to the Borrower ~~and its Subsidiaries~~ and forecasts prepared by management of the Borrower, in each case in form and substance satisfactory to the Administrative ~~Agent and~~ Agent. (ix) The Guaranty made by the ~~Joint Lead Arrangers~~Restricted Subsidiaries of the Borrower. (x) Evidence of the Borrower’s insurance coverage reasonably satisfactory to the Administrative Agent, ~~of balance sheets~~demonstrating that the Borrower’s existing insurance coverage remains in effect, ~~income statements and cash flow statements on an annual basis for each year following~~ together with a broker’s letter reasonably satisfactory to the ~~Effective Date until~~ Administrative Agent, dated the ~~Termination~~ Closing Date. (~~xii~~xi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xii) A solvency certificate of the Borrower’s Responsible Officer in substantially the form of Exhibit F hereto, certifying or attesting as to the Borrower’s Solvency and compliance with the matters set forth in Section 4.01(o). (xiii) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ P.C., ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits~~ Exhibit G-1 hereto and as to such other matters as the Administrative Agent may reasonably request. (xiv) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, local counsel for the Loan Parties, in substantially the form of Exhibit G-2 hereto and as to such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xv) ~~Evidence~~ A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, General Counsel for the Borrower, in substantially the form of Exhibit G-3 hereto and as to such other matters as the Administrative Agent may reasonably request. (xvi) A title search dated no earlier than 30 days prior to the Closing Date, prepared by a title company or a title search or abstract company reasonably satisfactory to the Administrative Agent with respect to substantially all the Owned Real Properties (unless otherwise consented to in advance by the Administrative Agent), (A) confirming record ownership of such Owned Real Properties in the Borrower or a Restricted Subsidiary (except as otherwise may be permitted by the Administrative Agent) and ~~the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~(B) showing no Liens other than Permitted Liens. (b) The Administrative Agent ~~and~~ shall have received satisfactory confirmation that the ~~Joint Lead Arrangers~~ Facilities shall ~~be satisfied with the corporate and legal structure and capitalization of each Loan Party and~~ have been rated by each of ~~its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms~~ ▇▇▇▇▇’▇ and ~~conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.~~S&P. (c) ~~All Equity Interests of the Guarantors~~ No litigation, inquiry, injunction or restraining order shall be ~~owned by~~ pending, entered or threatened (including any proposed statute, rule or regulation) which could be reasonably expected to have a Material Adverse Effect, and the Borrower ~~or one or more of~~ shall have so certified to the ~~Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents~~Administrative Agent. (d) ~~The Administrative Agent~~ All material governmental and ~~the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed~~ third party approvals (or ~~defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions~~ arrangements satisfactory to the ~~Administrative Agent~~ Lenders in lieu of such approvals) necessary in connection with the financing contemplated hereby and the ~~Joint Lead Arrangers~~continuing operations of the Borrower and its Restricted Subsidiaries shall have been obtained and be in full force and effect, and all material waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents, or imposes materially adverse conditions upon, the consummation of the Transactions, and the Borrower shall have so certified to the Administrative Agent. There shall not exist any judgment, order, injunction or other restraint prohibiting, or imposing materially adverse conditions upon, or making economically unfeasible, the consummation of the Transactions, and the Borrower shall have so certified to the Administrative Agent. (e) ~~Before giving effect to the Transaction~~Since December 31, 2003, there shall not have occurred ~~no Material Adverse Change since December 31~~any change, ~~2010. (f) There shall exist no action~~development, ~~suit, investigation, litigation~~ event or ~~proceeding affecting any Loan Party or any~~ circumstance which in the opinion of ~~its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i)~~ the Lenders could reasonably be expected to have a Material Adverse Effect ~~other than~~ and the ~~matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability~~ Administrative Agent shall not have become aware of any ~~Transaction Document~~ information or other matter that is inconsistent in a material and adverse manner with any information or other material theretofore disclosed to the Administrative Agent. (f) There shall exist no event of default (or condition which would constitute an event of default with the giving of notice or the ~~consummation~~ passage of time) under any material capital stock, financing agreements, lease agreements or other Material Contracts of the ~~Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party~~ Borrower or any of its Restricted Subsidiaries, of and the ~~Disclosed Litigation from that described on Schedule 4.01(f) hereto~~Borrower shall have so certified to the Administrative Agent. (g) ~~All governmental~~ The Administrative Agent and ~~third party consents and approvals necessary in connection with~~ the ~~Transaction~~ Revolving Credit Lenders shall have ~~been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers~~ received all fees, and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower Agent shall have ~~paid~~ received all ~~accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued~~ reasonable expenses ~~of the Joint Lead Arrangers~~ (including the accrued reasonable fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent, including local counsel) required to be paid, reimbursed or delivered on or before the Closing Date. (h) The Administrative Agent shall be satisfied with the absence of any material environmental liabilities of the Borrower and ~~local counsel to the Lender Parties)~~its Restricted Subsidiaries. (i) The ~~Refinancing shall have been consummated or~~ Administrative Agent shall be ~~consummated~~ satisfied that there are no encumbrances on any material real property owned by the Borrower or ~~concurrently consummated with the Effective Date, all advances and~~ any of its Restricted Subsidiaries other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedthan Permitted Liens. (j) ~~The Lenders~~ Simultaneously with the Initial Extension of Credit, the Borrower shall have repaid all of the Specified Existing Indebtedness and the commitments of the lenders thereunder shall have been terminated. There shall be in place arrangements for the release of any liens and security interests in respect of the Specified Existing Indebtedness satisfactory to the Administrative Agent and the Administrative Agent shall have received ~~all~~ a “pay-off” letter reasonably satisfactory to it with respect to the Specified Existing Indebtedness. (k) After giving effect to the initial funding under the Facilities, none of the Borrower or its Restricted Subsidiaries shall have outstanding any Debt or preferred stock (or direct or indirect guarantee or other credit support in respect thereof) other than pursuant to the Facilities and as permitted under this Agreement. (l) The Administrative Agent shall be reasonably satisfied that, after giving pro forma effect to the Refinancing, the initial funding of the Facilities, the consummation of the other elements of the Transactions and such other adjustments to EBITDA as are satisfactory to the Administrative Agent, the ratio of the Consolidated Funded Debt of the Borrower and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter prior to the Closing Date, to the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the period of the four consecutive fiscal quarters most recently ended prior to the Closing Date, shall not exceed 4.30 to 1.00. (m) All documentation ~~and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including~~ related to the ~~Patriot Act~~Transactions shall be reasonably satisfactory to the Administrative Agent. (n) The Borrower shall have received at least $400,000,000 in gross cash proceeds from the issuance of the Senior Notes on terms reasonably satisfactory to the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Landrys Restaurants Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes payable to the order of the Lenders to the extent requested pursuant to Section 2.16. (ii)~~ A pledge and security ~~agreement~~ agreement, in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j~~5.01(i), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"PLEDGE AND SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged ~~Shares~~ In- terests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment~~ duly executed copies of proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of~~ statements for filing in all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens and security interests~~ Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements, (D) duly executed cover sheets or other documents or instruments required to be filed with the United States Patent and Trademark Office, (E) evidence of the completion of all other recordings and filings of or with respect to the Pledge and Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens and security interests~~ Liens created under the Pledge and Security Agreement has been taken (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (~~iii~~ii) A ~~guaranty~~ guaranty, in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section ~~5.01(j~~5.01(i), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each ~~Subsidiary Guarantor~~Material Domestic Subsidiary. (iii) Deeds of trust, trust deeds and mortgages, in sub- stantially the form of Exhibit F hereto and covering the properties listed on Schedule 3.01(a) hereto (the "MORTGAGES"), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly recorded on or before the day of the Initial Extension of Credit in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amount acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all material defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as the Administrative Agent may deem necessary or desirable, and (D) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving ~~the Transaction 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~~ Governmental Authorizations and other necessary corporate actions or third party approvals and consents, if any, with respect to ~~the Transaction 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 ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter (or ~~articles of organization, as the case may be (“Organizational Documents”~~comparable Constitutive Document) of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's (or comparable Constitutive Document) on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the ~~State~~ state of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction ~~reasonably requested by the Joint Lead Arrangers~~in which each Loan Party is qualified to do business, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such ~~State~~ state and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate or certificates of each Loan Party, signed on behalf of such Loan Party by its President, a ~~Responsible Officer~~Vice President or Treasurer and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate or certificates shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or comparable Constitutive Document) of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ comparable Constitutive Document) 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements dated ~~December 31~~November 29, ~~2010~~1998, ~~interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available~~November 28, 1999 and November 26, 2000, pro forma ~~consolidated~~ financial statements as to the Borrower ~~and its Subsidiaries~~ and forecasts prepared by management of the Borrower, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance ~~sheets,~~ sheets and income statements on a monthly basis for the first Fiscal Year following the day of the Initial Extension of Credit and ~~cash flow statements~~ on an annual basis for each ~~year following the Effective Date~~ Fiscal Year thereafter until the Termination Date. (~~xii~~x) Evidence of insurance naming the Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance. (xi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xii) Favorable opinions of ▇▇Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special counsel for the Loan Parties, ▇▇▇~~, LLP and~~ ▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President and General Counsel of the Borrower, and Legal Strategies Group, special intellectual property counsel to the Borrower, in form and substance reasonably satisfactory to the Lender Parties. (xiii) A favorable opinion of O'Melveny & ▇▇▇▇▇ ~~Traurig LLP~~ LLP, special counsel ~~for~~ to the ~~Loan~~ Lender Parties, in ~~substantially the forms of respectively Exhibits G-1~~ form and ~~G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~Lender Parties. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers Lender Parties shall be satisfied that all obligations of the Borrower and its Subsidiaries under the Existing ~~Debt, other than Surviving Debt, has~~ Credit Agreements have been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers~~extinguished. (ec) ~~Before giving effect to the Transaction, there~~ There shall have occurred no Material Adverse Change since ~~December 31~~November 28, ~~2010~~1999. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any ~~court, governmental agency~~ Governmental Authority or arbitrator that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the ~~“Disclosed Litigation”~~"DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document ~~or the consummation of the Transaction,~~ and there shall have been no ~~adverse~~ change in the ~~status,~~ status or financial effect ~~on,~~ on any Loan Party or any of its ~~Subsidiaries,~~ Subsidiaries of the Disclosed Litigation ~~from that described on Schedule 4.01(f) hereto~~which change would be reasonably likely to have a Material Adverse Effect. (ge) All ~~governmental~~ Governmental Authorizations and all third party consents and approvals necessary in connection with the ~~Transaction~~ Loan Documents shall have been obtained ~~(without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent)~~ and shall remain in effect; and no ~~law or regulation~~ Requirements of Law shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Loan Documents or the rights of the Loan Parties or their Subsidiaries to create any Lien on, any properties now owned or hereafter acquired by any of them. (f) The Lender Parties shall have completed a due diligence inves- tigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, and, without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested. (g) The Lender Parties shall have received a trademark valuation from Ernst & Young LLP. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Levi Strauss & Co)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of each Lender that has requested the ~~Lenders to the extent requested pursuant to Section 2.16~~same. (ii) A security agreement in substantially the form of Exhibit D F hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan ~~Party~~Party that owns Borrowing Base Assets and each TRS Lessee, together with: (A~~) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (CB) completed requests for ~~information~~information dated a recent date, ~~dated on or before~~ including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the ~~date~~ case of ~~the Initial Extension of Credit~~UCC searches, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement and the Cash Management Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) ~~evidence~~ certified copies of the ~~insurance required by the terms of~~ Assigned Agreements referred to in the Security Agreement ~~naming~~ (which shall include, without limitation, the ~~Collateral Agent~~Management Agreement and Franchise Agreement and all amendments thereto entered into on or before the Closing Date with respect to each Borrowing Base Asset), ~~on behalf~~ together with a consent to such assignment, in substantially the form of Exhibit C to the ~~Lender Parties, as additional insured~~ Security Agreement or otherwise in form and ~~loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is~~ substance reasonably satisfactory to the Administrative ~~Agents~~ Agent, duly executed by each party to such Assigned Agreements other than the Loan Parties; (E) a subordination agreement executed and delivered by the ~~Joint Lead Arrangers~~property manager of each Borrowing Base Asset, (F) an Operating Lease Subordination Agreement with respect to each Operating Lease, (G) a franchisor comfort letter, substantially in the form of Exhibit J hereto or otherwise in form and substance reasonably satisfactory to the Administrative Agent, executed and delivered by the franchisors of each Borrowing Base Asset, (H) certificated Equity Interests in (i) each Subsidiary Guarantor that directly owns or leases a Borrowing Base Asset and (ii) TRS Holdco, and stock powers and membership interest powers (as the case may be) with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent, (I) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Borrowing Base Asset shall have complied with the Subsidiary Guarantor Requirements, and (FJ) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement and the Cash Management Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, ~~UCC-3~~ UCC termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit E G hereto (together with each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time~~ the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit H hereto (together with each other assignment of leases and rents delivered pursuant to ~~time~~Section 5.01(j), in each case as amended, the “~~Subsidiary Guaranty~~Assignments of Leases”)) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent in its reasonable discretion) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities, (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amount reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, and with respect to any such property located in a State in which a zoning endorsement is not available, a zoning report issued by Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 30 days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent, (D) engineering, soils, seismic (for those Borrowing Base Assets located in seismic zones 3 or 4), environmental and other similar reports as to the Borrowing Base Assets, in form and substance and from professional firms reasonably acceptable to the Administrative Agent, (E) estoppel and consent agreements, in form and substance reasonably satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of any Borrowing Base Assets subject to a Qualifying Ground Lease, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected Borrowing Base Asset, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent, (F) an Acceptable Appraisal of each Borrowing Base Asset described in the Mortgages, dated no less than 15 days prior to the Closing Date, (G) copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each Borrowing Base Asset, (H) (reserved) (I) certified copies of each Management Agreement and Franchise Agreement, Qualifying Ground Lease, and all amendments thereto, entered into with respect to each of the Borrowing Base Assets, (J) certified copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the Borrowing Base Assets, (K) copies of all Liens on each of the Borrowing Base Assets, including, without limitation, any reciprocal easement agreements, easements and other items of record, (L) estoppel certificates from the counterparties to any reciprocal easement agreements affecting any Borrowing Base Asset, (M) estoppel certificates and subordination, non-disturbance and attornment agreements from retail tenants at each of the Borrowing Base Assets where the annual rent under the applicable lease exceeds $10,000 per annum, and (N) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or desirable and evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) This Agreement, the Cash Management Agreement and the Control Agreement, each duly executed by the Loan Parties and the other parties thereto. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vvi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vivii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by ~~a Responsible Officer~~its President, Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~ix) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ixx) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and ~~forecasts prepared by management of~~ the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, Predecessor as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties ~~and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing~~ shall have ~~been consummated or shall be consummated or concurrently consummated with the Effective Date~~reasonably requested, ~~all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full~~including, ~~the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable~~ without limitation, information as to ~~the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent)~~possible contingent liabilities, and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationstax matters, ~~including the Patriot Act.~~environmental matters, obligations u

Appears in 1 contract

Sources: Credit Agreement (Summit Hotel Properties, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note payable to the order of ~~the Lenders~~ each Lender that has requested a Note prior to the ~~extent requested pursuant to Section 2.16~~Effective Date. (ii) ~~A security agreement~~ Security agreements in substantially the form of (x) Exhibit D F-1 hereto (the "Primary Security Agreement"), duly executed by each Loan Party that owns Borrowing Base Assets, and (y) Exhibit F-2 hereto (the "ARC Housing Security Agreement"), duly executed by ARC Housing LLC (the Primary Security Agreement and the ARC Housing Security Agreement, together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ being the “"Security ~~Agreement”~~Agreements")~~, duly executed by each Loan Party~~, together with: (A~~) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security ~~Agreement~~ Agreements that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreements, (E) duly executed account control agreements in respect of the concentration accounts referred to in Section 5.01(r) in form and substance satisfactory to the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary ~~or desirable~~ in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~ Agreements has been taken (including, without limitation, receipt of duly executed payoff letters, ~~UCC-3~~ UCC termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages, in substantially the form of Exhibit E G hereto (with such changes as may be required to account for local law matters and otherwise reasonably satisfactory in form and substance to the Collateral Agent) and covering all Manufactured Home Communities that could constitute Borrowing Base Assets (together with each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, the "Mortgages"), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities, (B) with respect to all Manufactured Home Communities that could constitute Borrowing Base Assets, engineering, soils, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Collateral Agent, (C) evidence of the insurance required by the terms of the Mortgages, (D) an Appraisal of each Manufactured Home Community that could constitute a Borrowing Base Asset, and (E) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary and evidence that all other action that the Collateral Agent may deem necessary in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) A collateral sub-agency and services agreement in substantially the form of Exhibit I hereto, duly executed by the Borrower, ARC Housing LLC, the Collateral Agent and the Unit Collateral Agent (as the same may be amended, supplemented or otherwise modified from time to time, the ~~“Subsidiary Guaranty”~~"Collateral Sub-Agency Agreement"), ~~duly executed~~ together with evidence of delivery by ~~each Subsidiary Guarantor~~ARC Housing LLC to the Unit Collateral Agent of such original powers of attorney as the Collateral Agent or the Unit Collateral Agent may deem necessary or desirable to authorize the Unit Collateral Agent to execute and file all documents necessary under the applicable provisions of the Uniform Commercial Code and any applicable certificate of title statutes in effect in any applicable jurisdiction to create and perfect first priority security interests in all Manufactured Home Rental Units that could constitute Borrowing Base Assets. (ivv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors, general partner or managing member, as applicable, of ~~the members~~ each Loan Party and of each general partner or ~~managers~~ managing member (if any) of each Loan Party approving the ~~Transaction~~ transactions contemplated by the Loan Documents 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary~~’s office,~~ 's office and (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vivii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed would not be reasonably ~~requested by the Joint Lead Arrangers~~likely to have a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~ix) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ixx) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated~~ for the year ending December 31, ~~2010~~2002, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma consolidated~~ in the event the Lender Parties' due diligence review reveals material changes since such financial ~~statements~~ statements, as of a later date within 45 days of the day of the Initial Extension of Credit). (xi) Evidence of insurance naming the Administrative Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties. (xii) An opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Loan Parties, in substantially the form of Exhibit E-1 hereto and as to such other matters as any Lender Party through the ~~Borrower~~ Administrative Agent may reasonably request. (xiii) An opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Loan Parties, in substantially the form of Exhibit E-2 hereto and ~~its Subsidiaries~~ as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xiv) An opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel for the Loan Parties, in substantially the form of Exhibit E-3 hereto and ~~forecasts prepared by management~~ as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xv) An opinion of Holland & ▇▇▇▇ LLP, Wyoming counsel for the ~~Borrower~~Loan Parties, in substantially the form of Exhibit E-4 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xvi) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel for the Loan Parties, in substantially the form of Exhibit E-5 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xvii) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Agent. (~~xii~~xviii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and ~~each of~~ its ~~Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Subsidiaries, including the terms and conditions of the ~~charter~~charter and bylaws, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and~~ operating agreement, partnership agreement or other governing document of each ~~agreement or instrument relating to such structure or capitalization~~of them. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent~~ Lender Parties. (i) The Recapitalization and the ~~Joint Lead Arrangers~~IPO shall have been, substantially concurrently herewith, consummated, (ii) the Parent Guarantor shall have received net cash proceeds from the IPO in an amount not less than $350,000,000, and (iii) the common shares of the Parent Guarantor shall have been listed on the New York Stock Exchange. (e) Before and after giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2002. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the ~~Transaction~~transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the ~~Transaction~~ transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; , and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~transactions contemplated by the Loan Documents. (h) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(n). (i) The Borrower shall have delivered each of the items required under Section 5.01(s). (j) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the Agents~~ Administrative Agent and the Lender Parties and all ~~accrued~~ reasonable, out-of-pocket expenses of the ~~Joint Lead Arrangers~~ Administrative Agent (including the ~~accrued~~ reasonable fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties~~Administrative Agent). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Affordable Residential Communities Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or ~~of any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for ~~the~~ any Notes) in sufficient copies for each Lender Party: (i) ~~The~~ Notes payable to the order of the Lenders to the extent requested by any Lender pursuant to Section ~~2.16~~2.15. (ii) A Notice of Borrowing relating to the Initial Extension of Credit. (iii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, amended and restated, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, the “"Security Agreement”"), duly executed by the Borrower and each ~~Loan Party~~U.S. Subsidiary, together with: (A) (1) certificates representing the Pledged Shares ~~referred to therein accompanied by~~ in respect of each U.S. Guarantor which is a Significant Subsidiary, if any, (2) certificates representing 65% of the Pledged Shares in respect of each Non-U.S. Guarantor which is a Significant Subsidiary (other than those set out on Schedule 3.01(a)(iii)(A)(2)), if any, and (3) in respect of both (1) and (2), undated stock powers executed in blank and instruments evidencing the respective Pledged ~~Debt~~ Debt, if any, indorsed in blank, (B) ~~acknowledgment~~ executed copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of the States of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens and security interests~~ Liens created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Loan Party and its Subsidiaries as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement, (F) copies of the Assigned Agreements, if any, referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, (G) executed termination statements (Form UCC-3 or a comparable form), in proper form to be duly filed on the date of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem desirable in order to terminate or amend existing Liens on the Collateral ~~Agent~~described in the Security Agreement, (H) the Blocked Account Letters referred to in the Security Agreement, duly executed by each Blocked Account Bank listed on ~~behalf of the Lender Parties, as additional insured~~ Schedule 3.01(a)(iii)(H) in form and ~~loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is~~ substance satisfactory to the Administrative ~~Agents and the Joint Lead Arrangers, and~~Agent, (FI) Landlord consents and bailee letters from the Persons listed on Schedule 3.01(a)(iii)(I), to the extent and in form and substance satisfactory to the Administrative Agent, (J) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority~~ liens and security interests created under the Security Agreement has been ~~taken~~ taken, including the registration of the Pledged Shares of the Non-U.S. Subsidiaries which are Significant Subsidiaries, and (~~including, without limitation, receipt of~~ K) Intercompany Notes duly executed ~~payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~by each Subsidiary together with the Non-U.S. Security Agreements relating to Intercompany Notes from such Non-U.S. Subsidiaries as set forth on Schedule 3.01(a)(iii)(K) or such other Non-U.S. Subsidiaries as the Administrative Agent shall have requested. (~~iii~~iv) A ~~guaranty~~ termination letter from each existing lender to the Borrower to the Administrative Agent relating to the satisfaction and termination of the Existing Debt. (v) The U.S. Guaranty duly executed by all U.S. Subsidiaries. (vi) The Non-U.S. Guaranty duly executed by all Non-U.S. Subsidiaries as requested by the Administrative Agent. (vii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit E hereto and covering the properties listed on Schedule 4.01(r) (together with each other ~~guaranty and guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, amended and restated, supplemented or otherwise modified from time to ~~time~~time in accordance with their terms, the ~~“Subsidiary Guaranty”~~"Mortgages"), duly executed by the appropriate Loan Party, together with: (A) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies") in form and substance, with endorsements and in amount acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages as of the time of the Initial Extension of Credit to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (B) an appraisal of each ~~Subsidiary Guarantor~~of the properties described in the Mortgages, if requested by the Administrative Agent, which appraisals shall be from a Person acceptable to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent, (C) such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as the Administrative Agent may deem necessary or desirable, (D) evidence of the insurance required by the terms of the Mortgages, and (E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (ivviii) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers of~~ Borrower and each ~~Loan Party~~ Significant Subsidiary approving the Transaction and each ~~Loan~~ Transaction 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~~approvals, if any, with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a ~~party~~party and of the transactions contemplated hereby. (vix) A copy of a certificate of the Secretary of State (or such other similar document in respect of the Non-U.S. Subsidiaries) of the jurisdiction of incorporation of the Borrower and each Significant Subsidiary, dated reasonably near the date of the Initial Extension of Credit, in each case listing the charter of the Borrower and each Significant Subsidiary and each amendment thereto on file in his office and certifying that (A) such charter is a true and correct copy thereof, (B) such amendments are the only amendments to such charter on file in his office, (C) such Person has paid all franchise taxes to the date of such certificate and (D) such Person is duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (x) A copy of a certificate of the Secretary of State of the ~~jurisdiction of incorporation or organization of each Loan Party~~States listed on Schedule 3.01(a)(x), dated reasonably near the ~~Effective Date, certifying (A) as to a true and correct copy~~ date of the ~~charter~~Initial Extension of Credit, ~~articles of incorporation or articles of organization, as~~ with respect to the ~~case may be (“Organizational Documents”) of such Loan Party~~ Borrower and each ~~amendment thereto~~ Significant Subsidiary as listed on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective DateSchedule 3.01(a)(x), stating that ~~a Loan Party~~ such Person is duly qualified and in good standing as a foreign ~~entity~~ corporation in such ~~State~~ States and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~xi) A certificate of the Borrower and each ~~Loan Party~~Significant Subsidiary, signed on behalf of each such ~~Loan Party~~ Person by ~~a Responsible Officer~~its Executive Vice President and its Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such ~~Loan Party~~ Person since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(ix), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such ~~Loan Party~~ Person as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(ix) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such ~~Loan Party~~ Person as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its incorporation ~~or organization,~~ and the absence of any proceeding for the dissolution or liquidation of such ~~Loan Party~~Person, (D) the ~~truth~~ completeness and accuracy of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~xii) A certificate of ~~a Responsible Officer~~ the Secretary of each Loan Party certifying the names and true signatures of the officers of such ~~Loan Party~~ Persons authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixxiii) ~~Certified copies of~~ Such financial, business and other information regarding each of Loan Party and its Subsidiaries as the ~~Related Documents~~Lender Parties shall have requested, ~~duly executed~~ including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated June 30, 1998, June 30, 1997 and June 30, 1996, interim financial statements dated March 31, 1999, and forecasts prepared by ~~the parties thereto and~~ management, in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~xiv) ~~A Notice of Borrowing or Notice of Issuance~~Environmental assessment reports, in form and substance satisfactory to the Lender Parties, as ~~applicable~~listed on Schedule 3.01(a)(xiv) hereto, ~~relating~~ as to hazards, costs or liabilities under Environmental Laws to which the Borrower or any Loan Party, or any of its Subsidiaries may be subject, the amount and nature of which and the Borrower's plans with respect to which shall be acceptable to the ~~Initial Extension of Credit~~Lender Parties, together with evidence, in form and substance satisfactory to the Lender Parties, that all applicable Environmental Laws shall have been complied with. To the extent either the report or any other information that may become available to the Lender Parties shall disclose any hazards, costs or liabilities under Environmental Laws or otherwise that the Lender Parties deem material, the Lender Parties shall be satisfied that such hazards, costs or liabilities were adequately reflected in the Borrower's financial reserves shown on the financial statements included in the Information Memorandum or that, to the extent not so reflected, the Borrower has made adequate provision for such hazards, costs or liabilities. (~~xiii~~xv) A letter, in form and substance satisfactory to the Administrative Agent, from the Borrower to Pricewaterhouse Coopers LLP, its independent certified public accountants, advising such accountants that the Administrative Agent and the Lender Parties have been authorized to exercise all rights of the Borrower to require such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to the Borrower and its Subsidiaries and directing such accountants to comply with any reasonable request of the Administrative Agent or any Lender Party for such information. (xvi) Evidence of insurance naming the Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance, product liability insurance, and directors and officers insurance. (xvii) Favorable opinions of O'Melveny & ▇▇▇▇▇, New York and California and English counsel for the Loan Parties, and L. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP~~ Executive Vice President, Secretary and ~~▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for~~ General Counsel of the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits~~ Exhibit G-1 and G-2 ~~hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request~~hereto. (~~xiv~~xviii) ~~Evidence satisfactory~~ A favorable opinion of local counsel to the Loan Parties, acceptable in form and substance to the Administrative ~~Agent~~ Agent. (xix) A certificate, in substantially the from of Exhibit H hereto, attesting to the Solvency of the Borrower and its Subsidiaries taken as a whole after giving effect to the Transaction and the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~other transactions contemplated hereby from its chief financial officer. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of ~~each Loan Party~~ the Borrower and ~~each of~~ its ~~Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant~~ Subsidiaries, both before and after giving effect to the ~~Loan Documents~~Transaction, including the terms and conditions of the charter, bylaws and each class of ~~Equity Interest in each~~ capital stock of the Loan ~~Party~~ Parties and ~~each such Subsidiary~~ their Subsidiaries and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the ~~Transaction~~Transaction and the other transactions contemplated by this Agreement, there shall have occurred no Material Adverse Change since ~~December 31~~June 30, ~~2010~~1998. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any Loan Party or any of ~~its~~ their Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could ~~reasonably be expected to~~ have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of the Transaction or any Transaction Document or the consummation of the ~~Transaction, and there shall have been no adverse change in~~ transactions contemplated by the ~~status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto~~Transaction Documents. (ge) All governmental and third party consents and approvals necessary in connection with the Transaction and the other transactions contemplated by the Transaction Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the Transaction and the other transactions contemplated by the Transaction Documents shall have expired without any action having been taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction and the other transactions contemplated by the Transaction Documents or the rights of the Loan Parties freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (hf) The ~~Borrower~~ Lender Parties shall have ~~paid all accrued fees~~ completed a due diligence investigation of the ~~Joint Lead Arrangers~~Borrower and its Subsidiaries (including, without limitation, a field examination of the ~~Agents~~ quality of their current assets and of their management information systems) in scope, and with results, satisfactory to the Lender Parties and the Lender Parties shall have been given such access to the management, records, books of account, contracts and ~~all accrued expenses~~ properties of the ~~Joint Lead Arrangers (including the accrued fees~~ Borrower and ~~expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties)~~its Subsidiaries as they shall have requested. (ig) The ~~Refinancing shall have been consummated or~~ Lender Parties shall be ~~consummated or concurrently consummated with~~ satisfied that all Existing Debt, other than the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying AgentSurviving Debt identified on Schedule 3.01(g), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.has b

Appears in 1 contract

Sources: Credit Agreement (International Rectifier Corp /De/)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Article II of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which such conditions precedent have been satisfied): (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified~~) and (except for the Notes) in sufficient copies for each Lender Party:~~): (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j)~~5.01(i) or otherwise, in each case as amended~~, supplemented or otherwise modified from time to time~~, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any of the Loan ~~Party~~ Parties as debtor, together with copies of such other financing statements, all as reasonably satisfactory to the Administrative Agent, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable 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,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a ~~party~~party as in full force and effect, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of ~~incorporation or organization~~ formation of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ similar organizational document 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 ~~Organizational Documents~~ charter (or similar organizational document) on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, or in the case such Loan Party does not have a Secretary or any Assistant Secretary, any other duly qualified officer of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or similar organizational document of such Loan Party since the date of the Secretary of State’s certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the ~~truth~~ truth, in all material respects, of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit (other than any such representations and warranties that, by their express terms, refer to a specific date, in which case as of such specific date) and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vi) A certificate of the President or a ~~Responsible Officer~~ Vice President and the Secretary or an Assistant Secretary of each Loan Party, or in the case such Loan Party does not have a Secretary or any Assistant Secretary, any other duly qualified officer of such Loan Party, 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~~hereunder. (ixvii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance reasonably satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or shall reasonable request, including, without limitation, evidence of the ~~Joint Lead Arrangers shall request~~consent of the board of directors of each of Bull Run, G▇▇▇ and TCM and the shareholders of Bull Run. (xviii) ~~Certificates,~~ A certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of each of the Loan ~~Party individually and together with its Subsidiaries, taken as a whole~~Parties, before and after giving effect to the Transaction, from ~~its~~ the Chief Financial ~~Officer~~Officer of the Borrower. (ix) The Intercreditor Agreement, ~~if any~~in substantially the form of Exhibit G hereto. (x) Evidence of the Loan Parties’ insurance coverage reasonably satisfactory to the Administrative Agent, demonstrating that the Loan Parties’ existing insurance coverage remains in effect, together with endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or ~~other Responsible Officer if none~~loss payee, as the case may be. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xii) ~~Favorable opinions~~ A favorable opinion of (A) Proskauer Rose LLP, counsel to the Loan Parties, in substantially the form of Exhibit H-1 hereto and (B) T▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇, LLP and ▇▇▇~~S▇▇▇▇▇▇ ~~Traurig LLP~~ LLP, counsel to the Loan Parties in substantially the form of Exhibit H-2 hereto. (xiii) A favorable opinion of W▇▇▇▇, Tarrant & C▇▇▇▇, LLP, local counsel for the Loan ~~Parties~~Parties in Kentucky, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit I hereto and as to such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (xiv) ~~Evidence satisfactory~~ A favorable opinion of Blooston, Mordkofsky, Dickens, D▇▇▇▇ & P▇▇▇▇▇▇▇▇▇▇ LLP, regulatory counsel for the Loan Parties, in substantially the form of Exhibit J hereto and as to such other matters as the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The ~~Administrative Agent and the Joint Lead~~ Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the ~~charter~~charter or similar organizational document, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or ~~capitalization~~capitalization (including, without limitation, as to the ability of any Subsidiary of the Borrower to pay dividends or make distributions to or otherwise advance funds to, its equity holders), and any FCC Licenses shall be held by an Eligible SPV. (c) ~~All Equity Interests~~ After giving pro forma effect to the Transaction and the Initial Extension of Credit hereunder, the Parent and its Subsidiaries shall have (i) a pro forma consolidated EBITDA (calculated on a pro forma basis in accordance with Regulation S-X under the Securities Act of 1933, as amended and including other adjustments, if any, agreed to by the Arrangers and the Parent, the “Closing Date Pro Forma EBITDA”) for the twelve-month period ended September 30, 2005 of at least $18,000,000, (ii) a ratio of Consolidated Debt of the ~~Guarantors shall be owned by the Borrower or one or more~~ Parent and its Subsidiaries as of the ~~Borrower’s Subsidiaries~~Closing Date to Closing Date Pro Forma EBITDA of not greater than 6.75:1.00, ~~in each case free~~ and ~~clear~~ (iii) a ratio of Consolidated Debt of the Parent and its Subsidiaries as of the Closing Date secured or intended to be secured by a first-priority perfected Lien on any ~~Lien other~~ property or assets of the Parent or any of its Subsidiaries to Closing Date Pro Forma EBITDA of not greater than ~~Liens created under the Loan Documents~~5.25:1.00. (d) The Arrangers shall have received, in form and substance reasonably satisfactory to the Arrangers, (i) copies of the financial statements referred to in Sections 4.01(h) and 4.01(i) and (ii) forecasts prepared by management of balance sheets, income statements and cashflow statements of the Parent and its Subsidiaries, which shall be quarterly for Fiscal Year 2005 and Fiscal Year 2006 and annual thereafter for the term of the this Agreement and the Second Lien Term Loan Facility. (e) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be satisfied that all Existing ~~Debt~~Debt of the Parent and its Subsidiaries (including such Existing Debt attributed to the G▇▇▇ Businesses) and Bull Run and its Subsidiaries, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated, any and all liens securing such indebtedness shall have been released and that all Surviving Debt shall be in an amount and on terms and conditions reasonably satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010~~Agent. (f) The Arrangers shall be reasonably satisfied with the terms and amounts of any intercompany indebtedness among the Loan Parties and the flow of funds, as of the Effective Date, in connection with this Agreement and the Second Lien Term Loan Facility. (g) The Loan Parties shall comply with the terms of the Fee Letter. (h) The Arrangers shall be reasonably satisfied with senior management of the Loan Parties. (i) All Governmental Authorizations, Approvals and third party consents necessary in connection with the Transaction shall have been obtained (including, without limitation, the consents of the board of directors of each of Bull Run, G▇▇▇ and TCM and the shareholders of Bull Run and, in any case, without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the operation of the businesses of the Loan Parties or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (j) There shall exist no action, suit, labor dispute, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or or, to the Loan Parties’ knowledge, threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gk) ~~All governmental and third party consents and approvals necessary in connection with the Transaction~~ The Arrangers shall have ~~been obtained~~ completed their legal and confirmatory business, tax, accounting, ERISA, and environmental due diligence concerning the Parent, Bull Run and their respective Subsidiaries (~~without~~ including the ~~imposition of any conditions that are not acceptable~~ G▇▇▇ Businesses), with results in all respects reasonably satisfactory to the ~~Joint Lead~~ Arrangers (including, without limitation, as to the tax free nature of the Merger, the Spin-Off and the ~~Administrative Agent~~Transaction) and shall ~~remain in effect;~~ not have become aware of any material information or other matter (including any matter relating to financial models and ~~no law~~ underlying assumptions relating to the projections affecting the Parent, Bull Run or ~~regulation shall be applicable~~ their respective Subsidiaries (including the G▇▇▇ Businesses), that in the judgment of the ~~Joint Lead~~ Arrangers is inconsistent in a material and adverse manner with any due diligence results or with any information or other matter previously disclosed to the ~~Administrative Agent~~Arrangers. (l) The Arrangers shall be reasonably satisfied that (i) the Parent and its Subsidiaries will be able to meet their obligations under all employee and retiree welfare plans, (ii) the employee benefit plans of the Parent and its ERISA affiliates are, in all material respects, funded in accordance with the minimum statutory requirements, (iii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan, and (iv) no termination of, or withdrawal from, any such employee benefit plan has occurred or is contemplated that could reasonably be expected to result in a material liability. (m) The Arrangers shall have received such other documents, agreements and opinions in connection with this Agreement, all reasonably satisfactory in form and substance, as the Arrangers may reasonably request. (n) The Facilities shall have been rated at least B2 by M▇▇▇▇’▇ and at least B by S&P, in each case ~~that restrains, prevents or imposes materially adverse conditions upon the Transaction~~with a stable outlook. (ho) The Merger Agreement and the Separation and Distribution Agreement shall be in full force and effect, and the Spin-Off and the Merger shall have been consummated, in all material respects, in accordance with the terms of the Merger Agreement and the Separation and Distribution Agreement, without any waiver or amendment that is adverse to the Lender Parties unless consented to by the Arrangers of any term, provision or condition set forth therein, and in compliance with all applicable laws. (p) The Borrower shall have received at least $29,700,000 in gross cash proceeds from the advances under the Second Lien Term Loan Facility, and the Merger Consideration shall have been paid upon terms and to investors reasonably satisfactory to the Arrangers. (q) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers,~~ Agents and Arrangers and all reasonable expenses of the Agents and ~~the Lender Parties and all accrued expenses of the Joint Lead~~ Arrangers (including the reasonable accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Triple Crown Media, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ each 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 of each of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent (unless otherwise specified)~~ Lenders, and in sufficient copies (except for the Notes~~) in sufficient copies~~ ), for each Lender Party: (i) The Notes payable to the order of the Lenders to duly executed by the ~~extent requested pursuant to Section 2.16~~Borrower. (ii) A security agreement in substantially the form of Exhibit ~~D hereto~~ F granting to the Administrative Agent, for the ratable benefit of the Lenders, a first priority security interest (subject only to Liens permitted under Section 6.1) in the Collateral described therein (together with each other security agreement ~~and security agreement supplement~~ delivered pursuant to Section ~~5.01(j)~~5.11, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, ~~the “~~each a "Security Agreement”"), duly executed by the Borrower and each ~~Loan Party~~Subsidiary Guarantor, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsproper, duly ~~filed on or before the day of the Initial Extension of Credit~~ executed financing statements under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens~~ Liens and security interests created under the Security ~~Agreement~~Agreement (subject only to Liens permitted under Section 6.1), covering the Collateral described in the Security Agreement,; (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed ~~in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name the Borrower or any ~~Loan Party~~ Subsidiary Guarantor as debtor, together with copies of such ~~other~~ financing statements,; (DC) evidence of the completion of (or provision for) all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,; (ED) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement; (E) certificates representing the ~~Collateral Agent~~Pledged Shares referred to in the Security Agreement, ~~on behalf~~ accompanied by undated stock powers executed in blank and irrevocable proxies; (F) in the case of the ~~Lender Parties~~Borrower's Foreign Subsidiaries, ~~as additional insured~~ all action necessary to allow the Administrative Agent to obtain a valid and ~~loss payee with~~ enforceable, first priority, perfected security interest in (x) 65% (or such ~~responsible~~ greater percentage which would not result in material adverse tax consequences) of the Voting Stock and ~~reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ (y) 100% (to the ~~Administrative Agents and~~ extent it would not result in material adverse tax consequences) of the ~~Joint Lead Arrangers,~~ non-voting stock of each Foreign Subsidiary; and (FG) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens~~ Liens and security interests (subject to Liens permitted pursuant to Section 6.1) created under the Security Agreement has been ~~taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (~~iii~~A) ~~A guaranty~~ Mortgages duly executed by the Borrower or applicable Subsidiary Guarantor for each parcel of real property listed on Schedule 4.20, together with evidence that counterparts of the Mortgages have been delivered to a title insurance company (reasonably acceptable to the Agents) insuring the Lien of the Mortgages for recording in all places to the extent necessary or desirable, in the reasonable judgment of the Agents, to create a valid and enforceable first priority Lien on each parcel of real property listed on Schedule 4.20 (subject only to Permitted Liens) in favor of the Administrative Agent (or a trustee acting on behalf of the Administrative Agent required or desired under local law) for the benefit of the Secured Parties; (B) Mortgagee title insurance policies (or binding commitments to issue such title insurance policies) which shall (1) be issued to the Administrative Agent for the benefit of the Secured Parties by title insurance companies reasonably satisfactory to the Administrative Agent (the "Mortgage Policies") in amounts reasonably satisfactory to the Administrative Agent insuring that the Mortgages are valid and enforceable first priority mortgage Liens on the respective parcels of real property, free and clear of all defects, encumbrances and other Liens except Permitted Liens, (2) be in form and substance reasonably satisfactory to the Administrative Agent, (3) include, as appropriate, and to the extent reasonably available, an endorsement for future advances under this Agreement, the Notes and the Mortgages and such other endorsements that the Administrative Agent in its discretion may reasonably request, and (4) to the extent reasonably available, provide for affirmative insurance and such reinsurance (including direct access agreements) as the Administrative Agent in its discretion may reasonably request; and (C) Surveys, in form and substance satisfactory to the Administrative Agent, of each parcel of real property listed on Schedule 4.20, dated a recent date reasonably acceptable to the Administrative Agent, certified by a licensed professional surveyor in a manner satisfactory to the Administrative Agent for the benefit of the Lenders. (iv) An intellectual property security agreement in substantially the form of Exhibit E G hereto granting to the Administrative Agent for the ratable benefit of the Lenders a first priority security interest (subject to Liens permitted pursuant to Section 6.1) in all of the Borrower's and each Subsidiary Guarantor's intellectual property (together with each other ~~guaranty and guaranty supplement~~ intellectual property security agreement delivered pursuant to Section ~~5.01(j)~~5.11, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, each an "Intellectual Property Security Agreement"), duly executed by the Borrower and each Subsidiary Guarantor, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens (subject to Liens permitted pursuant to Section 6.1) and security interests created under the Intellectual Property Security Agreement has been taken. (v) A pledge agreement substantially in the form of Exhibit H hereto (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the “"Holdings Pledge Agreement") pursuant to which all of the issued and outstanding capital stock of the Borrower held by Holdings shall be pledged to the Administrative Agent as security for the Obligations, together with the certificates representing all shares pledged thereunder, undated stock powers executed in blank and proxies with respect thereto. (vi) A guaranty in substantially the form of Exhibit I hereto (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Holdings Guaranty"), duly executed by Holdings. (vii) A guaranty in substantially the form of Exhibit J hereto (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty”"), duly executed by each Subsidiary Guarantor. (ivviii) Certified copies of ~~the~~ resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ Spectrum Acquisition, this Agreement, the Notes, and each other Loan Document and Spectrum Acquisition Documents to which it is or is to be a party, and of all documents evidencing other necessary corporate action and ~~governmental~~ governmental, shareholder and other third party approvals and consents, if any, with respect to the ~~Transaction~~ Spectrum Acquisition, this Agreement, the Notes, and each other Loan Document ~~to which it is or is to be a party~~and Spectrum Acquisition Documents. (vix) A copy of the charter (or equivalent document) of each Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary of State of the jurisdiction of its incorporation or organization as being a true and correct copy thereof. (x) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation or ~~organization~~ organization, dated within ten (10) Business Days of the date of the Initial Extension of Credit, listing the charter (or equivalent document) of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) of such Loan Party and each amendment thereto on file in ~~such Secretary’s~~ its office and ~~(B)~~ certifying that (1A) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter (or equivalent document) on file in ~~such Secretary’s~~ its office, (2B) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing ~~or presently subsisting~~ under the laws of the State of the jurisdiction of its incorporation or organization. (vixi) A copy of a certificate of the Secretary of State of each ~~jurisdiction reasonably requested by the Joint Lead Arrangers~~State listed on Schedule 3.1(a)(xi), dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that ~~a Loan Party~~ the Borrower and each of its Subsidiaries is duly qualified and in good standing as a foreign ~~entity~~ corporation or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~xii) A certificate of each Loan ~~Party,~~ Party signed on behalf of such Loan Party by a Responsible ~~Officer~~Officer and the Secretary or an Assistant Secretary of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in ~~which~~ such certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or equivalent document) of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.1(a)(xi), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ equivalent document) 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 date~~ of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties made by such Loan Party contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (ED) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~xiii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement, the Notes, each other Loan Document to which ~~it is~~ they are or is are to be ~~a party~~ parties and the other documents to be delivered hereunder and thereunder. (ixxiv) ~~Certified copies of~~ Such financial, business and other information regarding Holdings, the Borrower and each Subsidiary Guarantor and each such Person's Subsidiaries as any of the ~~Related Documents~~Lenders shall have reasonably requested, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties~~including, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual audited financial statements ~~dated December 31~~of the Borrower for its most recent three (3) Fiscal Years, ~~2010, interim~~ unaudited financial statements dated the end of the most recent fiscal ~~quarter~~ quarter, if any, for which financial statements are available, an unaudited pro forma ~~consolidated financial statements as to~~ balance sheet of the Borrower and its Subsidiaries which gives effect to the Transaction as if it had occurred on December 31, 2001, an unaudited pro forma income statement of the Borrower (including a calculation of EBITDA) which gives effect to the Transaction for the trailing twelve (12) months of operations ending on December 31, 2001 and forecasts prepared by management of the Borrower, all in form and substance reasonably satisfactory to the ~~Administrative Agent and~~ Lenders. All pro forma financial statements shall be prepared in accordance in all material respects with the ~~Joint Lead Arrangers~~requirements of Regulation S-X under the Securities Act of 1933, ~~of balance sheets~~as amended, ~~income statements and cash flow statements~~ applicable to a Registration Statement under such Act on ~~an annual basis for each year following the Effective Date until the Termination Date~~Form S-1. (~~xii~~xv) ~~A Notice~~ Notices of Borrowing ~~or Notice~~ with respect to each of ~~Issuance, as applicable, relating~~ the Term Facilities pursuant to which the Borrower shall request an Initial Extension of ~~Credit. (xiii) Favorable opinions~~ Credit in an aggregate amount of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereofnot more than $225,000,000. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Agents shall be satisfied with (i) the ~~corporate~~ corporate, ownership and legal structure and capitalization of ~~each Loan Party and~~ the Borrower, each of its Subsidiaries and each Related Professional Corporation after the ~~Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Spectrum Acquisition, ~~including~~ including, without limitation, the terms and conditions of the charter, ~~bylaws~~ by-laws (or equivalent documents), stockholder agreements and each class of ~~Equity Interest in each Loan Party and~~ capital stock or membership interests of the Borrower, each such Subsidiary and each Related Professional Corporation and of each agreement or instrument relating to such structure or ~~capitalization~~capitalization and (ii) the management of the Borrower, each of its Subsidiaries and each Related Professional Corporation (after giving effect to the Spectrum Acquisition). (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Agents shall be satisfied that all Existing ~~Debt, other than Surviving Debt,~~ Debt has been (or, upon consummation of the Spectrum Acquisition will be) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished concurrently with the funding of the Initial Extension of Credit and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Agents. (ed) ~~Before giving effect to the Transaction, there~~ There shall have occurred no Material Adverse Change (including any event which, in the opinion of the Agents, is reasonably likely to result in a Material Adverse Change) in the business, assets, liabilities (actual and contingent), operations, condition (financial or otherwise), management or prospects of the Borrower, the Target and their respective Subsidiaries, taken as a whole, since December 31, ~~2010~~2001; and no material inaccuracy in such financial statements shall exist. (fe) There shall exist no action, suit, investigation, litigation or proceeding ~~affecting any Loan Party or any of its Subsidiaries~~ pending or threatened in any court or before any ~~court,~~ arbitrator or governmental ~~agency~~ or ~~arbitrator~~ Regulatory Agency or authority that (i) could reasonably be expected to (A) have a ~~Material Adverse Effect other than~~ material adverse effect on the ~~matters described on Schedule 4.01(f~~business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) ~~hereto~~ or management of the Borrower, the Target and their respective Subsidiaries, taken as a whole, (B) materially and adversely affect the ~~“Disclosed Litigation”~~ability of the Borrower or any Subsidiary Guarantor to perform its obligations under the Loan Documents to which it is a party or (C) materially and adversely affect the rights and remedies of the Administrative Agent and the Lender Parties under the Loan Documents or (ii) purports to materially and adversely affect any aspect of the ~~legality, validity or enforceability of any~~ Transaction ~~Document~~ or the ~~consummation of the Transaction~~Facilities (collectively, a "Material Adverse Effect"); and there shall have been no ~~adverse change~~ Material Adverse Change in the status, or financial effect ~~on, any Loan Party~~ on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule ~~4.01(f) hereto~~4.9. (gf) All ~~governmental~~ governmental, shareholder and other third party consents (except for third party consents with respect to contracts entered into in the ordinary course of business which are not material) and approvals ~~necessary in connection~~ (including under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) ne▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇tion with each aspect of the Transaction and the other transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Agents) and shall remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any authority; and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Agents that could restrain, ~~in each case that restrains, prevents~~ prevent or ~~imposes~~ impose any materially adverse conditions upon any aspect of the ~~Transaction~~Transaction or such other transactions or that could seek or threaten any of the foregoing. (g) There shall not exist any order, decree, judgment, ruling or injunction which restrains the consummation of the Transaction in the manner contemplated by the Spectrum Acquisition Documents. (h) The ~~Borrower~~ Agents and their counsel shall have ~~paid all accrued fees~~ completed their business, legal, environmental, tax, pension, regulatory and accounting due diligence investigation of the ~~Joint Lead Arrangers~~Borrower's, the ~~Agents~~ Target's, the other Loan Parties' and ~~the Lender Parties~~ their respective Subsidiaries' business, assets, liabilities (actual and ~~all accrued expenses of the Joint Lead Arrangers~~ contingent), operations, condition (~~including the accrued fees~~ financial or otherwise), management and ~~expenses of counsel to the Joint Lead Arrangers~~ prospects and ~~local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or~~ shall be ~~consummated or concurrently consummated~~ satisfied with the ~~Effective Date, all advances and other amounts owing under~~ results thereof. This condition shall be deemed satisfied unless any additional information is disclosed to or discovered by the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.Agents w

Appears in 1 contract

Sources: Credit Agreement (Team Health Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ --------------------------------------------------- obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of ~~the Lenders to the extent~~ each respective Lender (if requested ~~pursuant to Section 2.16~~by any such Lender). (ii) A security ~~agreement~~ agreement, in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) where applicable, certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing statements, ~~duly filed on or before the day of the Initial Extension of Credit~~ in form for filing, under the Uniform Commercial Code of ~~all jurisdictions that~~ the ~~Joint Lead Arrangers may deem necessary or desirable in order~~ jurisdiction of incorporation of each Loan Party 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and~~ all other ~~effective financing statements filed~~ documents for recording and filing, in ~~all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor~~proper form, ~~together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of~~ for or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement ~~has been~~ is ready to be taken concurrently with the Initial Extension of Credit (including, without limitation, receipt of ~~duly executed payoff letters,~~ UCC-3 termination statements ~~and landlords’ and bailees’ waiver and consent agreements~~with respect to the Existing Credit Agreement). (iii) A ~~guaranty~~ guarantee, in substantially the form of Exhibit E hereto (together with each other ~~guaranty~~ guarantee and ~~guaranty~~ guarantee supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary ~~Guaranty”~~Guarantee"), duly executed by each ~~Subsidiary~~ Guarantor. (iv) An intellectual property security agreement, in substantially the form annexed to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "Intellectual Property Security Agreement"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement is ready to be taken concurrently with the Initial Extension of Credit. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction 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~~ Governmental Authorizations and other necessary corporate actions or third party approvals and consents, if any, with respect to the Transaction and each Loan Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter (or ~~articles of organization, as the case may be (“Organizational Documents”~~comparable Constitutive Document) of such Loan Party and each amendment thereto on file in such Secretary’s 's office ~~and~~ (B) that ~~(1)~~ such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's (or comparable Constitutive Document) on file in such Secretary’s 's office, ~~(2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate~~ and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificateincorporation. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or comparable Constitutive Document) of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ comparable Constitutive Document) of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, and (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit except for representations and ~~(E) the absence~~ warranties that by their terms speak as of ~~any event occurring and continuing~~another specific date, ~~or resulting from the Initial Extension~~ which shall be true as of ~~Credit, that constitutes a Default~~such specific date. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements dated December 31, ~~2010~~2001, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma ~~consolidated~~ financial statements as to the Borrower and ~~its Subsidiaries and~~ forecasts prepared by management of the ~~Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers~~Company, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for ~~each year following~~ five years thereafter. (x) Evidence of insurance naming the ~~Effective Date until~~ Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the ~~Termination Date~~Lender Parties, including, without limitation, business interruption insurance. (xi) The Intercreditor Agreement duly executed by the Agent on behalf of the Lenders, the Collateral Agent, as defined therein, and any Lender or Affiliate thereof who is then a party to a Hedge Agreement. (xii) A Notice of Borrowing or Notice of Issuance, as applicable~~, relating to the Initial Extension of Credit~~. (xiii) ~~Favorable opinions~~ A favorable opinion of Steven J. Udicious, general counsel for the Loan Parties, i▇ ▇▇▇▇~~▇▇▇ & ▇▇▇▇▇▇▇, LLP and~~ ▇▇▇▇▇▇▇▇▇ ~~Traurig LLP counsel for the Loan Parties, in substantially the forms~~ ▇▇e form of ~~respectively Exhibits G-1 and G-2~~ Exhibit F hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (xiv) ~~Evidence satisfactory~~ A favorable opinion of Riordan & McKinzie, special counsel to the Lender Parties, ▇▇ ▇▇▇▇tan▇▇▇▇▇▇ ▇he form of Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The Administrative Agent shall have received satisfactory evidence that not less than 90% of the principal amount of the 2001 Subordinated Notes has been tendered to, and purchased by, the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged Borrower pursuant to an Offer to Purchase and Consent Solicitation dated March 21, 2002 and that any covenants in the ~~Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument~~ Indenture relating to such ~~structure~~ notes prohibiting the Borrower entering into this Agreement or ~~capitalization~~the consummation of the transactions contemplated hereby have been eliminated, waived or otherwise discharged pursuant to a duly executed Supplemental Indenture or other instrument satisfactory to the Administrative Agent. (c) All ~~Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free~~ Governmental Authorizations and ~~clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that~~ all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; and no ~~law or regulation~~ Requirements of Law shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the Transaction. (hd) The Borrower shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties)~~Agents. (i) ~~The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other~~ All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have ~~been repaid~~ been, or concurrently with the Initial Extension of Credit made on the Closing Date shall be, paid in full, (ii) all commitments of the ~~commitments thereunder shall have terminated and~~ lenders under the ~~letters of credit issued thereunder shall have been canceled or~~ Existing Credit Agreement (except for the ~~reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as~~ Existing Letters of Credit) shall have been, or concurrently with the Initial Extension of Credit ~~hereunder is acceptable to~~ made on the ~~Paying Agent)~~Closing Date shall be, ~~and all Liens and guaranties supporting~~ terminated in accordance with the terms of the Existing Credit Agreement, (iii) the lenders or any ~~Debt~~ collateral agent under the Existing Credit Agreement shall have ~~been fully released~~ executed such instruments (including without limitation Uniform Commercial Code termination statements) and ~~terminated.~~ agreed to take such other actions as are reasonably necessary to terminate or release all security interests granted in connection with the Existing Credit Agreement and (jiv) ~~The Lenders~~ adequate arrangements shall have ~~received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including~~ been made with the ~~Patriot Act~~issuer of the Existing Letters of Credit concerning the continuation thereof.

Appears in 1 contract

Sources: Credit Agreement (Davita Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Agents (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders that have requested Notes prior to the ~~extent requested pursuant to Section 2.16~~Effective Date. (ii) A security agreement from (a) CBI in substantially the form of Exhibit D D-1 hereto (the "SHARED COLLATERAL SECURITY AGREEMENT") and (b) the other Loan Parties in substantially the form of Exhibit D-2 hereto (the "NON-SHARED COLLATERAL SECURITY AGREEMENT"; together with the Shared Collateral Security Agreement, each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENTS"), duly executed by each Loan ~~Party~~Party party thereto, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on~~ statements (Form UCC-1 or ~~before~~ a comparable form) or the ~~day of the Initial Extension of Credit~~ equivalent thereof under the Uniform Commercial Code to be filed in the legal name of ~~all jurisdictions that~~ each required Loan Party with the ~~Joint Lead Arrangers may deem necessary or desirable~~ Secretary of State in the state where such Loan Party maintains its chief executive office in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~Agreements, covering the Collateral described in the Security ~~Agreement~~Agreements, in each case completed in a manner satisfactory to Agents and duly executed by the required Loan Party, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security ~~Agreement~~ Agreements that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~ Agreements has been taken (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) A guaranty from (a) the Subsidiary Guarantors who have guaranteed the Obligations of IXCS and its Subsidiaries under the Loan Documents (the "IXCS SUBSIDIARY GUARANTY") and (b) the Subsidiary Guarantors who have guaranteed the Obligations of CBI and its Subsidiaries under the Loan Documents (the "CBI SUBSIDIARY GUARANTY"), in each case, in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTIES"), duly executed by each Subsidiary ~~Guarantor~~Guarantor party thereto. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors (or persons performing similar functions), or, in the case of wholly owned Subsidiaries, action by unanimous written consent of the ~~members or managers~~ sole shareholder, of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party, the consummation of each aspect of the Transaction involving or affecting such Loan Party and the other transactions contemplated by any of the foregoing, and of all documents evidencing other necessary corporate action and governmental and other third party ~~approvals and~~ approvals, consents, ~~if any~~authorizations, notices and filings of actions with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a ~~party~~party (other than the approvals by certain state public utility commissions listed in the attached Schedule 4.01(d) that have not been obtained as of the date hereof but the failure to obtain such approvals either individually or in the aggregate could not be expected to have a Material Adverse Effect). (v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation (or ~~organization~~ organization) of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter (or ~~articles of organization, as the case may be (“Organizational Documents”~~similar constitutive document) of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated (or ~~organized~~ organized) and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation (or organization). (vi) A copy of a certificate of the Secretary of State of each jurisdiction ~~reasonably requested by the Joint Lead Arrangers~~in which a Loan Party is qualified or licensed as a foreign corporation or limited liability company, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation or limited liability company, as the case may be, in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President or Treasurer and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter, articles of incorporation or certificate of formation, as applicable, of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws or ~~operating~~ limited liability company agreement, as applicable, of such Loan Party as in effect on the date on which the ~~resolutions~~ resolutions, or actions by written consent, as applicable, referred to in Section 3.01(a)(iv) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) ~~the due incorporation/organization and good standing~~ no proceeding for dissolution or ~~valid existence~~ liquidation of such Loan Party ~~as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of~~ has been commenced by such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as they relate to such Loan Party as though made on and as of the date of the Initial Extension of Credit (except to the extent they expressly relate to an earlier date, in which case certifying that such representations and warranties are true and correct as of such earlier date) and (E) the absence of any event relating to such Loan Party occurring and continuing, or ~~resulting~~ reasonably expected to result from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the ~~officers~~ officers, partners, members or equivalent persons of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (x) ~~Certificates~~Certified copies of a certificate of merger or other confirmation satisfactory to the Agents of the consummation of the Merger from the Secretary of State of the State of Delaware. (xi) Certificates and letters, in ~~substantially~~ form and substance reasonably satisfactory to the ~~form of Exhibit F~~Lender Parties, attesting to the Solvency of ~~each Loan Party individually~~ CBI and ~~together with~~ its ~~Subsidiaries, taken as~~ Subsidiaries on a ~~whole,~~ Consolidated basis before and after giving effect to the ~~Transaction,~~ Transaction (and the incurrence of indebtedness related thereto) from ~~its~~ the Chief Financial ~~Officer, if any, or other Responsible~~ Officer ~~if none~~of CBI. (xixii) ~~Audited annual financial~~ Certified copies of all of the agreements, instruments and other documents evidencing or setting forth the terms and conditions of Surviving Debt that is outstanding or has commitments for the extension of credit on the Effective Date in an aggregate amount of at least $1,000,000 in each case, duly executed by the parties thereto together with all Exhibits and Schedules thereto. (xiii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Agents shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, and copies, certified by a Responsible Officer of the Borrower of (A) audited consolidated balance sheets and related statements ~~dated~~ of income, stockholders equity and cash flows of each Borrower for the fiscal years ended December 31, ~~2010~~1994, ~~interim~~ December 31, 1995, December 31, 1996, December 31, 1997, December 31, 1998, (B) the unaudited consolidated and, to the extent available, consolidating balance sheets and related financial statements ~~dated~~ of each Borrower for each completed fiscal quarter since the ~~end~~ date of the ~~most recent fiscal quarter for which~~ audited financial ~~statements are available,~~ statements, (C) pro forma consolidated ~~financial statements as~~ and, to the ~~Borrower~~ extent available, consolidating balance sheet of CBI as of September 30, 1999 after giving effect to the Merger and ~~its Subsidiaries and~~ the making of the Advances hereunder, together and (D) forecasts prepared by management of the ~~Borrower~~CBI, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly and annual basis for the Company and CBI for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~xiv) A certificate of a Responsible Officer of CBI that shortly before and immediately after giving pro forma effect to the Transaction, CBI and its Subsidiaries will be in compliance with Section 5.04. (xv) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries. (xvi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xvii) Favorable opinions of Cravath, Swaine & ▇▇▇▇▇, with respect to the Loan Documents, Frost & ▇▇▇▇▇▇, with respect to the CBI entities (excluding those issues addressed in the Steptoe & ▇▇▇▇▇▇▇ opinion), Steptoe & ▇▇▇▇▇▇▇, with respect to certain regulatory issues related to the CBI entities, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, with respect to the IXC entities (excluding those issues addressed in the Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol opinion), Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol, with respect to regulatory issues related to the IXC entities, and Graves, Doughterty, ▇▇▇▇▇ & ▇▇▇▇▇, with respect to issues relating to the Uniform Commercial Code of the State of Texas, in the form reasonably acceptable to the Agents. (xviii) A favorable tax opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ~~LLP~~ counsel for IXC, and a favorable opinion ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇~~▇▇▇ Traurig LLP~~ , Esq., General Counsel to CBI, delivered in connection with the Merger, which opinion is either (A) addressed to the Agents and the Lender Parties and expressly states that the Agents and the Lender Parties may rely on such opinion or (B) accompanied by a reliance letter from such counsel addressed to the Agents and the Lender Parties that expressly states that the Agents and the Lender Parties may rely on such opinion. (xix) A favorable opinion of Shearman & Sterling, counsel for the ~~Loan Parties~~Administrative Agent, in ~~substantially the forms of respectively Exhibits G-1~~ form and ~~G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ substance satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~Agent. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be reasonably satisfied with the ~~corporate~~ organizational and legal structure and capitalization of each Loan Party and each of its Subsidiaries in which the Equity ~~Interests~~ Interest in ~~which~~ such Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing ~~Debt, other than Surviving Debt,~~ Debt listed on Schedule 4.01(s) has been prepaid, redeemed or defeased in full (or scheduled for payment, redemption or defeasance as set forth on Schedule 4.01(s)) or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions reasonably satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before giving effect and immediately after giving pro forma effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~1998, except as disclosed in the Form S-4 of CBI filed with the Securities and Exchange Commission on September 13, 1999. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the best knowledge of any Loan Party or any of its Subsidiaries, threatened before any court, governmental agency or arbitrator that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any Transaction Document except for the matters described in Schedule 4.01(f) hereto (the "Disclosed Litigation"), as they relate to the Merger or the consummation of the Transaction, ; and there shall have been no material adverse change in the status, or the reasonably anticipated financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of ~~the~~ such Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All governmental and third party consents and approvals and authorizations of, notices and filings to or with, and other actions by any other Person necessary in connection with any aspect of the ~~Transaction~~ Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated thereby, shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in ~~effect~~effect (other than the approvals by certain state public utility commissions listed in the attached Schedule 4.01(d) that have not been obtained as of the date hereof but the failure to obtain such approvals either individually or in the aggregate could not be expected to have a Material Adverse Effect); all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (hg) The ~~Borrower~~ Lender Parties shall have ~~paid all accrued fees~~ completed a due diligence investigation of ~~the Joint Lead Arrangers~~CBI, the ~~Agents~~ Company and ~~the Lender Parties~~ their respective Subsidiaries in scope, and ~~all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel~~ with results, satisfactory to the Lender Parties). , and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe (i) ~~The Refinancing shall have been consummated~~ that the Information Memorandum was or ~~shall be consummated~~ has become misleading, incorrect or ~~concurrently consummated with~~ incomplete in any material respect, (ii) that, following the ~~Effective Date, all advances and other amounts owing under~~ consummation of the ~~Existing Credit Agreement shall have been repaid in full~~Merger, the ~~commitments thereunder shall~~ Borrower and its Subsidiaries would not have ~~terminated~~ good and marketable title to all material assets of the ~~letters~~ Company and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger will not have a Material Adverse Effect on any Loan Party or any of ~~credit issued thereunder shall have been canceled or~~ its Subsidiaries; without limiting the ~~reimbursement~~ generality of ~~draws thereunder provided for in a manner acceptable to~~ the ~~Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to~~ foregoing, the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.Lender

Appears in 1 contract

Sources: Credit Agreement (Broadwing Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note payable to the order of ~~the Lenders~~ each Lender that has requested a Note prior to the ~~extent requested pursuant to Section 2.16~~Effective Date. (ii) A security agreement in substantially the form of (x) Exhibit ~~D hereto~~ F-1 hereto, duly executed by each Loan Party that owns Eligible Real Estate Assets, and (y) Exhibit F-2 hereto, duly executed by ▇▇▇▇▇▇▇ Properties Services, Inc. (such security agreements, together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ being the ~~“Security Agreement”~~"SECURITY AGREEMENTS")~~, duly executed by each Loan Party~~, together with: (A~~) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~Agreements, covering the Collateral described in the Security ~~Agreement~~Agreements, (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security ~~Agreement~~ Agreements that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) ~~evidence~~ copies of the ~~insurance required by the terms of~~ Assigned Agreements referred to in the Security ~~Agreement naming the Collateral Agent~~Agreements, ~~on behalf of the Lender Parties~~together with, ~~as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ except to the ~~Administrative Agents and~~ extent contemplated in Section 5.01(s) to occur after the ~~Joint Lead Arrangers~~Closing Date, a consent to such assignment, in substantially the form of Exhibit B to the Security Agreements, duly executed by each party to such Assigned Agreements other than the Loan Parties, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~ Agreements has been taken (including, without limitation, receipt of duly executed payoff letters, ~~UCC-3~~ UCC termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages, in substantially the form of Exhibit E G hereto (with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Collateral Agent) and covering the properties comprising Eligible Real Estate Assets (together with the Assignments of Leases and Rents referred to therein and each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"MORTGAGES"), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amount acceptable to the Collateral Agent, issued, coinsured and reinsured by title insurers acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Collateral Agent may deem necessary or desirable, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 30 days before the day of the Initial Extension of Credit, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Collateral Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (▇) engineering, soils, environmental and other reports as to the properties described in the Mortgages, in form and substance and from professional firms acceptable to the Collateral Agent, (E) the Assignments of Leases and Rents referred to in the Mortgages, duly executed by the appropriate Loan Party, (F) estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of the leased Eligible Real Property Assets listed on Schedule 4.0 l(q) hereto, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledge by the owner of the affected Real Property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent's reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent, (G) evidence of the insurance required by the terms of the Mortgages, (H) estoppel certificates executed by all tenants of the Eligible Real Estate Assets, (I) an Appraisal of each of the Real Property assets described in the Mortgages, and (J) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may deem necessary or desirable and evidence that all other action that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors, general partner or managing member, as applicable, of ~~the members~~ each Loan Party and of each general partner or ~~managers~~ managing member (if any) of each Loan Party approving the ~~Transaction~~ transactions contemplated by the Loan Documents 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 ~~Transaction~~ transactions under the Loan Documents 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 (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary~~’s office,~~ 's office and (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed would not be reasonably ~~requested by the Joint Lead Arrangers~~likely to have a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective Date~~date of the Initial Extension of Credit, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated~~ for the year ending December 31, ~~2010~~2002, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma consolidated~~ in the event the Lender Parties' due diligence review reveals material changes since such financial ~~statements~~ statements, as ~~to the Borrower and its Subsidiaries and forecasts prepared by management~~ of a later date within 45 days of the ~~Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers,~~ day of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit). (~~xiii~~x) ~~Favorable opinions~~ Evidence of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as insurance naming the Administrative Agent as loss payee and additional insured with such responsible and reputable insurance companies or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transactionassociations, and ~~there shall have been no adverse change~~ in ~~the status~~such amounts and covering such risks, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel as is satisfactory to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Maguire Properties Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested ~~pursuant to~~ in accordance with Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent, on behalf~~ Agreement, (F) copies of the ~~Lender Parties~~Assigned Agreements referred to in the Security Agreement, ~~as additional insured and loss payee~~ together with a consent to such ~~responsible and reputable insurance companies or associations~~assignment, ~~and~~ in ~~such amounts and covering such risks, as is satisfactory~~ substantially the form of Exhibit B to the ~~Administrative Agents and~~ Security Agreement, duly executed by each party to such Assigned Agreements other than the ~~Joint Lead Arrangers~~Loan Parties, (G) the Pledged Account Letters referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the transactions contemplated by the Transaction Documents and each ~~Loan~~ Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate or other action and governmental and other third party approvals and consents, if any, with respect to the transactions contemplated by the Transaction Documents and each ~~Loan~~ Transaction 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 or~~ organization of each Loan ~~Party~~Party (other than any Loan Party that is an Immaterial Subsidiary or Foreign Subsidiary), dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in ~~such Secretary’s~~ his office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in ~~such Secretary’s~~ his office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of the jurisdiction of organization of each ~~jurisdiction reasonably requested by the Joint Lead Arrangers~~Loan Party (other than any Loan Party that is an Immaterial Subsidiary or Foreign Subsidiary), dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a such Loan Party is duly qualified and in good standing ~~as a foreign entity~~ in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan ~~Party,~~ Party (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (x) ~~Certificates,~~ Certificates in substantially the form of Exhibit F, F hereto attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole, before and~~ after giving effect to the ~~Transaction~~transactions contemplated by the Transaction Documents, from its ~~Chief Financial Officer, if any, or other Responsible Officer if none~~chief financial officer. (xi) ~~Audited~~ An Intercreditor Agreement, in form and substance satisfactory to the Lender Parties (as amended, to the extent permitted under the Loan Documents, or replaced in accordance with Section 5.02(b)(iii)(I) the "INTERCREDITOR AGREEMENT"), among the Collateral Agent, the applicable Borrower and each respective secured creditor of such Borrower, duly executed by each such secured creditor of such Borrower and such Borrower. (xii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated ~~December 31~~November 1, ~~2010~~1998, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the ~~Borrower and its Subsidiaries~~ Parent Guarantor and forecasts prepared by management of the ~~Borrower~~Parent Guarantor, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~xiii) A letter, in form and substance satisfactory to the Administrative Agent, from the Parent Guarantor to PricewaterhouseCoopers LLC, its independent certified public accountants, advising such accountants that the Agents and the Lender Parties have been authorized to exercise all rights of the Parent Guarantor to require such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to the Parent Guarantor and its Subsidiaries and directing such accountants to comply with any reasonable request of any Agent or any Lender Party for such information. (xiv) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance. (xv) Certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries. (xvi) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit. (~~xiii~~xvii) ~~Favorable opinions~~ Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit E hereto and covering the properties listed on Schedule 4.01(t) (together with each other mortgage delivered pursuant to Section 5.01(j), in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms, the "MORTGAGES"), duly executed by the appropriate Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (xviii) A favorable opinion of Snell & Wilmer, counsel for the Loan Parties, in substa▇▇▇▇▇ly ▇▇▇ ▇▇rm of Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xix) A favorable opinion of Lionel, Sawyer & Collins, Ballard Spahr Andrews & Ingersoll, ▇▇▇▇mak▇▇, ▇▇op ▇▇▇ ▇▇▇▇▇▇▇▇, ~~LLP and~~ ▇▇▇, Winstead, Sechrest & Minick, P.C., local ▇▇▇▇▇▇▇ ~~Traurig LLP counsel for~~ to the ~~Loan Parties~~Lender Part▇▇▇ ▇▇ ▇eva▇▇, ▇▇w Jersey, Ohio and Texas, respectively, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit H hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (~~b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the ~~corporate and~~ legal structure and capitalization of each Loan Party and each of its Subsidiaries the ~~Equity Interests in~~ capital stock of which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of ~~Equity Interest in~~ capital stock or other equity interest of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than ~~Surviving Debt~~the Debt identified on Schedule 4.01(u) hereto (the "SURVIVING DEBT"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before giving effect to the ~~Transaction~~transactions contemplated by the Transaction Documents and except as disclosed in the Parent Guarantor's quarterly report on Form 10-Q for the quarter ended August 1, 1999 or otherwise disclosed to the Lender Parties in writing prior to the date hereof, there shall have occurred no Material Adverse Change since ~~December 31~~November 1, ~~2010~~1998. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the ~~“Disclosed Litigation”~~"DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the ~~Transaction~~or the other transactions contemplated by the Transaction Documents, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Transaction Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~transactions contemplated by the Transaction Documents or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (g) The Lender Parties shall have completed a due diligence investigation of the Parent Guarantor and its Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Parent Guarantor and its Subsidiaries as they shall have requested. (h) The ~~Borrower~~ Borrowers shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all reasonable accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the reasonable accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The ~~Refinancing shall have been consummated or~~ Lender Parties shall be ~~consummated or concurrently consummated~~ satisfied with the ~~Effective Date, all advances~~ Parent Guarantor's and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedeach Borrower's management. (j) The ~~Lenders~~ Borrowers shall have ~~received all documentation~~ entered into one or more committed inbound inventory flooring arrangements for an amount not less than $250,000,000 and for a term ending no earlier than the Termination Date and with terms and conditions satisfactory to the Lender Parties, and the Lender Parties shall be satisfied with the terms and conditions of each other ~~information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act~~inbound inventory flooring arrangement to which any Loan Party is a party.

Appears in 1 contract

Sources: Credit Agreement (Microage Inc /De/)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes (other than the Term C Notes) payable to the ~~order~~ Lenders or their registered assigns (provided that in the case of the ~~Lenders~~ Term B Facility, the Borrower shall deliver a Term B Note for each B Lender evidencing the first Term B Advance to ~~the extent requested pursuant to Section 2.16~~be made by such Lender). (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Hotel Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent, on behalf~~ Agreement, (F) copies of the ~~Lender Parties~~Assigned Agreements referred to in the Security Agreement, ~~as additional insured and loss payee~~ together with a consent to such ~~responsible and reputable insurance companies or associations~~assignment, ~~and~~ in ~~such amounts and covering such risks, as is satisfactory~~ substantially the form of Exhibit B to the ~~Administrative Agents and~~ Security Agreement, duly executed by each party to such Assigned Agreements other than the ~~Joint Lead Arrangers~~Loan Parties, (G) the Pledged Account Letters referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) ~~A guaranty~~ Deeds of trust, trust deeds, mortgages, leasehold mortgages, leasehold deeds of trust and/or assignments and/or amendments and restatements of deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in ~~substantially~~ form and substance acceptable to the ~~form~~ Administrative Agent and covering the Hotel Collateral Properties listed on Part I of ~~Exhibit E~~ Schedules 4.01(w) and 4.01(x) hereto (together with the Assignments of Leases and Rents referred to therein and each other ~~guaranty and guaranty supplement~~ mortgage or similar document delivered pursuant to Section 5.01(j) or 5.01(p), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"Mortgages"), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly recorded on or before the day of the Initial Extension of Credit in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies") in form and substance, with endorsements and in amount acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may reasonably deem necessary or desirable, (C) American Land Title Association form surveys, dated no more than 9 months before the day of the Initial Extension of Credit (or, in the case of newly constructed properties, no more than 30 days before the day of the Initial Extension of Credit), certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (D) the Assignments of Leases and Rents referred to in the Mortgages, duly executed by the appropriate Loan Party, (E) such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as the Administrative Agent may deem necessary or desirable, (F) evidence of the insurance required by the terms of the Mortgages, (G) an appraisal (each, an "Appraisal") of each ~~Subsidiary Guarantor.~~of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989 (the Value set forth in an Appraisal being the "Appraisal Value") , (H) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken, and (I) any other actions required pursuant to the terms set forth in Annex A. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction 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 ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary~~’s office,~~ 's office and (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of the jurisdiction of organization of each ~~jurisdiction reasonably requested by the Joint Lead Arrangers~~Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a each Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (x) Certificates, in substantially the form of Exhibit FF hereto, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole,~~ before and after giving effect to the Transaction, from its Chief Financial Officer~~, if any, or other Responsible Officer if none~~. (xi) ~~Audited~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, ~~2010~~1998, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the ~~Borrower~~ Parent and ~~its~~ it Subsidiaries and forecasts prepared by management of the ~~Borrower~~Company, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (xii) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance. (xiii) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries as the Administrative Agent shall request. (xiv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xv) ~~Favorable opinions~~ A favorable opinion of Cadwalder, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇~~▇▇▇~~, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xvi) ~~Evidence~~ A favorable opinion of each local counsel to the Parties listed on Schedule 3.01(a), in form and substance satisfactory to the ~~Administrative Agent and~~ Lender Parties. (xvii) Each of the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof.~~Canadian Documents duly executed by Servico Windsor, Inc. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before giving effect to the ~~Transaction~~Transactions, there shall have occurred no Material Adverse Change since December 31, ~~2010~~1998. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters ~~described~~ listed on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the ~~Transaction~~Transactions, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (hg) The ~~Borrower~~ Lender Parties shall have ~~paid all accrued fees~~ completed a due diligence investigation of the ~~Joint Lead Arrangers~~Parent and its Subsidiaries in scope, ~~the Agents~~ and ~~the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel~~ with results, satisfactory to the Lender Parties~~). (i) The Refinancing~~ , and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lender Parties shall have been ~~consummated or~~ given such access to the management, records, books of account, contracts and properties of the Parent and its Subsidiaries as they shall ~~be consummated or concurrently consummated~~ have requested; including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employees, annual financial statements dated December 31, 1998, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.pro forma consolidated

Appears in 1 contract

Sources: Credit Agreement (Servico Market Center Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The ~~Administrative~~ Paying Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative~~ Paying Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders that have requested Notes prior to the ~~extent requested pursuant to Section 2.16~~Effective Date. (ii) A ~~security~~ pledge agreement in substantially the form of Exhibit D hereto (~~together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case~~ as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"PLEDGE AGREEMENT"), duly executed by ~~each Loan Party~~the Company and AROP, together with: (A) ~~certificates representing~~ evidence that the ~~Pledged Shares referred~~ Qualified Securities have been credited to ~~therein accompanied by undated stock powers executed~~ the Securities Account (as defined in ~~blank and instruments evidencing~~ the ~~Pledged Debt indorsed in blank~~Pledge Agreement), (B) ~~acknowledgment~~ duly executed copies of proper financing statements, ~~duly~~ to be filed ~~on or before the day of~~ immediately after the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Paying Agent may deem necessary or desirable 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~~ Pledge Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements ~~filed~~ on file in ~~all jurisdictions that~~ the ~~Joint Lead Arrangers may deem necessary or desirable~~ office of the county clerk of Oklahoma County, Oklahoma that name ~~any Loan Party~~ the Borrower as debtor, together with copies of such other financing statements,, and (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all ~~other~~ action that the ~~Joint Lead Arrangers~~ Paying Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority ~~liens and security interests~~ Liens created under the ~~Security~~ Pledge Agreement has been ~~taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements).~~taken. Alliance Credit Agreement 56 56 (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of ~~the board of directors~~ or ~~of the members or managers~~ on behalf of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a ~~party~~party and/or authorizing the general partner or managing member, as applicable, to act on behalf of such limited partnership or limited liability company, as the case may be, and of all documents evidencing other necessary ~~corporate~~ action (including, without limitation, all necessary general partner, managing member or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each ~~Loan~~ Transaction 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~~ organization or ~~organization~~ formation of each Loan ~~Party,~~ Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ similar Constitutive Documents of such ~~Loan Party~~ Person and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such ~~Loan Party’s Organizational~~ Person's charter or Constitutive Documents on file in such Secretary’s 's office, (2) ~~if applicable,~~ such ~~Loan Party~~ Person has paid all franchise taxes to the date of such certificate and (C) such ~~Loan Party~~ Person is duly ~~incorporated or organized~~ formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction ~~reasonably requested by the Joint Lead Arrangers~~in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that ~~a Loan Party~~ such Person is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such ~~Loan Party~~ Person by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to Alliance Credit Agreement 57 57 (A) the absence of any amendments to the ~~Organizational~~ Constitutive Documents of such ~~Loan Party~~ Person since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable, of such Loan Party~~ similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization or formation and good standing or valid existence of such ~~Loan Party~~ Person as a ~~corporation or~~ corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its ~~incorporation~~ organization or ~~organization~~formation, and the absence of any proceeding for the dissolution or liquidation of such ~~Loan Party~~Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable certifying the names and true signatures of the officers or managers, as applicable, of such ~~Loan Party~~ Person authorized to sign on its behalf each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the ~~Administrative~~ Paying Agent ~~or the Joint Lead Arrangers~~ shall request. (x) ~~Certificates,~~ An assumption agreement in substantially the form of Exhibit FH hereto (the "ASSUMPTION AGREEMENT"), duly executed by AROP. (xi) A certificate, substantially in the form of Exhibit F hereto (the "SOLVENCY CERTIFICATE"), attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole,~~ Parties before and after giving effect to the Transaction, from ~~its~~ the Chief Financial ~~Officer, if any,~~ Officer (or ~~other Responsible Officer if none~~person performing similar functions) of the Company. (xixii) ~~Audited annual financial statements dated December 31~~An environmental assessment report previously delivered to the Co-Administrative Agents prior to the Effective Date, ~~2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements~~ as to ~~the Borrower and~~ any hazards, costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries may be subject, the amount and ~~forecasts prepared by management~~ nature of which and the Borrower's plans with respect to which shall be acceptable to the Lender Parties, together with evidence, in form and substance satisfactory to the ~~Administrative Agent and~~ Lender Parties, that all Alliance Credit Agreement 58 58 applicable Environmental Laws shall have been complied with. To the ~~Joint Lead Arrangers~~extent that either such report or any other information that may become available to the Lender Parties shall disclose any hazards, ~~of balance sheets~~costs or liabilities under Environmental Laws or otherwise that the Lender Parties deem material, ~~income~~ the Lender Parties shall be satisfied that such hazards, costs or liabilities were adequately reflected in the Borrower's financial reserves shown on the financial statements ~~and cash flow statements on an annual basis~~ included in the Information Memorandum or that, to the extent not so reflected, the Borrower has made adequate provision for ~~each year following the Effective Date until the Termination Date~~such hazards, costs or liabilities. (~~xii~~xiii) A reasonableness review from Weir ▇▇▇ernational Mining Consultants with respect to the mine development plans that were delivered to the Paying Agent prior to the date hereof in form and substance satisfactory to the Lenders, including, without limitation, minimum coal reserves, verification of operating and productivity assumptions, the Gibs▇▇ ▇▇▇nty Project, Capital Expenditures, reclamation and closing costs and revenue projections. (xiv) A five year Business Plan in form and scope satisfactory to the Lenders. (xv) A Notice of Borrowing ~~or Notice of Issuance, as applicable,~~ relating to the Initial Extension of Credit. (~~xiii~~xvi) Favorable opinions of ~~▇▇▇▇~~(i) Andr▇▇▇ & ▇urt▇ ▇.▇.P., special counsel for the Loan Parties, (ii) Crow▇▇▇ & ▇ori▇▇ ▇▇▇, counsel for the Loan Parties, (iii) Thom▇▇ ▇. ▇▇▇▇▇▇▇, ~~LLP and~~ ▇▇~~▇▇▇▇▇▇▇ Traurig LLP~~ nior Vice President-Law and Administration and General Counsel of Alliance Resource Holdings, Inc., and (iv) local counsel with respect to the laws of Illinois, Indiana, Kentucky, Maryland and West Virginia, in each case, in form satisfactory to the Co-Administrative Agents. (xvii) A favorable opinion of Shearman & Sterling, counsel for the ~~Loan Parties~~Agents, in form and substance satisfactory to the Agents. (xviii) An intercreditor agreement in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit I hereto ~~and~~ (as ~~to such other matters as~~ amended, the ~~Administrative Agent or~~ "INTERCREDITOR AGREEMENT"), duly executed by the ~~Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to~~ Paying Agent, the ~~Administrative Agent~~ noteholders under the Note Purchase Agreement, the Subsidiary Guarantors and the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~Company. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lenders shall be satisfied with the ~~corporate and legal~~ partnership or limited liability company structure and capitalization of each Loan ~~Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Party, ~~including~~ including, without limitation, the terms and conditions of the ~~charter, bylaws~~ Constitutive Documents and each class of Equity Interest in ~~each~~ such Loan Party and each ~~such Subsidiary and of each~~ other agreement or instrument relating to such ~~structure or~~ partnership Alliance Credit Agreement 59 59 structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~1998. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or or, to the best knowledge of the Borrower, threatened before any court, governmental agency or arbitrator that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters satisfactory to the Paying Agent and described on Schedule 4.01(f) hereto (the ~~“Disclosed Litigation”~~"DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and those obtained shall ~~remain~~ be in ~~effect~~effect (other than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any Collateral. (g) The Agents shall have completed a due diligence investigation of each Loan Party and its Subsidiaries in scope, and with results, satisfactory to the Lender Parties. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers~~Agents, the ~~Agents~~ Joint Arrangers and the Lender Parties and all ~~accrued~~ reasonable expenses of the ~~Joint Lead Arrangers~~ Agents (including the ~~accrued~~ reasonable fees and expenses of Shearman & Sterling, counsel to the ~~Joint Lead Arrangers and local counsel~~ Agents) to the ~~Lender Parties).~~extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the Fee Letter. Alliance Credit Agreement 60 60 (i) The ~~Refinancing~~ Borrower shall have ~~been consummated or shall be consummated or concurrently consummated with~~ received at least (i) $180,000,000 in gross proceeds from the ~~Effective Date, all advances~~ sale of the Senior Notes and ~~other amounts owing under~~ (ii) $110,000,000 in Net Cash Proceeds from the ~~Existing Credit Agreement shall have been repaid in full,~~ sale of the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedMLP Units. (j) The ~~Lenders~~ MLP Units and the Senior Notes shall have been issued in accordance with the Transaction Documents. (k) The Senior Notes shall have received long-term senior unsecured non-credit enhanced debt ratings of at least BBB- from both Duff & Phel▇▇ Credit Rating Co. and Fitch IBCA, Inc and such rating shall remain in effect at the time of closing. (l) The Borrower's and its Subsidiaries' employee benefit plans shall be, in all ~~documentation~~ material respects, funded in accordance with the minimum statutory requirements, (ii) no "reportable event" (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and ~~other information required by bank regulatory authorities under applicable “know your customer”~~ be continuing as to any such employee benefit plan, and ~~anti~~(iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated. (m) The Company and AROP shall have completed each of the transactions described in the Contribution Agreement (the "CONTRIBUTION TRANSACTIONS") and no provision of the Contribution Agreement relating to the Contribution Transactions shall have been waived, modified or supplemented without the consent of the Co-~~money laundering rules and regulations, including the Patriot Act~~Administrative Agents.

Appears in 1 contract

Sources: Credit Agreement (Alliance Resource Partners Lp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ each 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 of each of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent (unless otherwise specified)~~ Lenders, and in sufficient copies (except for the Notes~~) in sufficient copies~~ ), for each Lender Party: (i) The Notes payable to the order of the Lenders to duly executed by the ~~extent requested pursuant to Section 2.16~~Borrower. (ii) A security agreement in substantially the form of Exhibit ~~D hereto~~ F granting to the Administrative Agent, for the ratable benefit of the Lenders, a first priority security interest (subject only to Liens permitted under Section 6.1) in the Collateral described therein (together with each other security agreement ~~and security agreement supplement~~ delivered pursuant to Section ~~5.01(j)~~5.11, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, ~~the “~~each a "Security Agreement”"), duly executed by the Borrower and each ~~Loan Party~~Subsidiary Guarantor, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsproper, duly ~~filed on or before the day of the Initial Extension of Credit~~ executed financing statements under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens~~ Liens and security interests created under the Security ~~Agreement~~Agreement (subject only to Liens permitted under Section 6.1), covering the Collateral described in the Security Agreement,; (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed ~~in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name the Borrower or any ~~Loan Party~~ Subsidiary Guarantor as debtor, together with copies of such ~~other~~ financing statements,; (DC) evidence of the completion of (or provision for) all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,; (ED) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement; 71 64 (E) certificates representing the ~~Collateral Agent~~Pledged Shares referred to in the Security Agreement, ~~on behalf~~ accompanied by undated stock powers executed in blank and irrevocable proxies; (F) in the case of the ~~Lender Parties~~Borrower's Foreign Subsidiaries, ~~as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ all action necessary to allow the Administrative ~~Agents~~ Agent to obtain a valid and enforceable, first priority, perfected security interest in (x) 65% (or such greater percentage which would not result in material adverse tax consequences) of the ~~Joint Lead Arrangers,~~ Voting Stock and (y) 100% of the non-voting stock of each Foreign Subsidiary; and (FG) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens~~ Liens and security interests (subject to Liens permitted pursuant to Section 6.1) created under the Security Agreement has been ~~taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (~~iii~~A) ~~A guaranty~~ Mortgages duly executed by the Borrower or applicable Subsidiary Guarantor for each parcel of real property listed on Schedule 4.20, together with evidence that counterparts of the Mortgages have been delivered to a title insurance company (reasonably acceptable to the Agents) insuring the Lien of the Mortgages for recording in all places to the extent necessary or desirable, in the reasonable judgment of the Agents, to create a valid and enforceable first priority Lien on each parcel of real property listed on Schedule 4.20 (subject only to Permitted Liens) in favor of the Administrative Agent (or a trustee acting on behalf of the Administrative Agent required or desired under local law) for the benefit of the Secured Parties; (B) Mortgagee title insurance policies (or binding commitments to issue such title insurance policies) which shall (1) be issued to the Administrative Agent for the benefit of the Secured Parties by title insurance companies reasonably satisfactory to the Administrative Agent (the "Mortgage Policies") in amounts reasonably satisfactory to the Administrative Agent insuring that the Mortgages are valid and enforceable first priority mortgage Liens on the respective parcels of real property, free and clear of all defects, encumbrances and other Liens except Permitted Liens, (2) be in form and substance reasonably satisfactory to the Administrative Agent, (3) include, as appropriate, and to the extent reasonably available, an endorsement for future advances under this Agreement, the Notes and the Mortgages and such other endorsements that the Administrative Agent in its discretion may reasonably request, and (4) to the extent reasonably available, provide for affirmative insurance and such reinsurance (including direct access agreements) as the Administrative Agent in its discretion may reasonably request; and (C) Surveys, in form and substance satisfactory to the Administrative Agent, of each parcel of real property listed on Schedule 4.20, dated a recent date reasonably 72 65 acceptable to the Administrative Agent, certified by a licensed professional surveyor in a manner satisfactory to the Administrative Agent for the benefit of the Lenders. (iv) An intellectual property security agreement in substantially the form of Exhibit E G hereto granting to the Administrative Agent for the ratable benefit of the Lenders a first priority security interest (subject to Liens permitted pursuant to Section 6.1) in all of the Borrower's and each Subsidiary Guarantor's intellectual property (together with each other ~~guaranty and guaranty supplement~~ intellectual property security agreement delivered pursuant to Section ~~5.01(j)~~5.11, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, each an "Intellectual Property Security Agreement"), duly executed by the Borrower and each Subsidiary Guarantor, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens (subject to Liens permitted pursuant to Section 6.1) and security interests created under the Intellectual Property Security Agreement has been taken. (v) A pledge agreement substantially in the form of Exhibit H hereto (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the “"Holdings Pledge Agreement") pursuant to which all of the issued and outstanding capital stock of the Borrower held by Holdings shall be pledged to the Administrative Agent as security for the Obligations, together with the certificates representing all shares pledged thereunder, undated stock powers executed in blank and proxies with respect thereto. (vi) A guaranty in substantially the form of Exhibit I hereto (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Holdings Guaranty"), duly executed by Holdings. (vii) A guaranty in substantially the form of Exhibit J hereto (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty”"), duly executed by each Subsidiary Guarantor. (ivviii) Certified copies of ~~the~~ resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ Recapitalization, this Agreement, the Notes, and each other Loan Document and Recapitalization Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and ~~governmental~~ governmental, shareholder and other third party approvals and consents, if any, with respect to the ~~Transaction~~ Recapitalization, this Agreement, the Notes, and each other Loan Document ~~to which it is or is to be a party~~and Recapitalization Document. (vix) A copy of the charter (or equivalent document) of each Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary of State of the jurisdiction of its incorporation or organization as being a true and correct copy thereof. 73 66 (x) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation or ~~organization~~ organization, dated within ten (10) Business Days of the date of the Initial Extension of Credit, listing the charter (or equivalent document) of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) of such Loan Party and each amendment thereto on file in ~~such Secretary’s~~ its office and ~~(B)~~ certifying that (1A) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter (or equivalent document) on file in ~~such Secretary’s~~ its office, (2B) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing ~~or presently subsisting~~ under the laws of the State of the jurisdiction of its incorporation or organization. (vixi) A copy of a certificate of the Secretary of State of each ~~jurisdiction reasonably requested by the Joint Lead Arrangers~~State listed on Schedule 3.1(a)(xi), dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that ~~a Loan Party~~ the Borrower and each of its Subsidiaries is duly qualified and in good standing as a foreign ~~entity~~ corporation or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~xii) A certificate of each Loan ~~Party,~~ Party signed on behalf of such Loan Party by a Responsible ~~Officer~~Officer and the Secretary or an Assistant Secretary of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in ~~which~~ such certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or equivalent document) of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.1(a)(xii), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ equivalent document) 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 date~~ of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties made by such Loan Party contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (ED) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~xiii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement, the Notes, each other Loan Document to which ~~it is~~ they are or is are to be ~~a party~~ parties and the other documents to be delivered hereunder and thereunder. (ixxiv) ~~Certified copies of~~ Such financial, business and other information regarding Holdings, the Borrower and each Subsidiary Guarantor and each such Person's Subsidiaries as any of the ~~Related Documents~~Lenders shall have reasonably requested, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties~~including, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual audited financial statements ~~dated December 31~~of the Borrower for its most recent three (3) Fiscal Years, ~~2010, interim~~ unaudited financial statements dated the end of the most recent fiscal ~~quarter~~ quarter, if any, for which financial statements are available, an unaudited pro forma ~~consolidated financial statements as to~~ balance sheet of the Borrower and its Subsidiaries which gives effect to the Transaction as if it had occurred on the last day of the most recently completed fiscal quarter of the Borrower, an unaudited pro forma income statement of the Borrower (including a calculation of EBITDA) which gives effect to the Transaction for the trailing twelve (12) months of operations ending on the most recently completed 74 67 fiscal quarter of the Borrower and forecasts prepared by management of the Borrower, all in form and substance reasonably satisfactory to the ~~Administrative Agent and~~ Lenders. All pro forma financial statements shall be prepared in accordance in all material respects with the ~~Joint Lead Arrangers~~requirements of Regulation S-X under the Securities Act of 1933, ~~of balance sheets~~as amended, ~~income statements and cash flow statements~~ applicable to a Registration Statement under such Act on ~~an annual basis for each year following the Effective Date until the Termination Date~~Form S-1. (~~xii~~xv) ~~A Notice~~ Notices of Borrowing ~~or Notice~~ with respect to each of ~~Issuance, as applicable, relating~~ the Term Facilities pursuant to which the Borrower shall request an Initial Extension of ~~Credit. (xiii) Favorable opinions~~ Credit in an aggregate amount of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereofnot more than $150,000,000. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Agents shall be satisfied with (i) the ~~corporate~~ corporate, ownership and legal structure and capitalization of ~~each Loan Party and~~ the Borrower, each of its Subsidiaries and each Related Professional Corporation after the ~~Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Recapitalization, ~~including~~ including, without limitation, the terms and conditions of the charter, ~~bylaws~~ by-laws (or equivalent documents), stockholder agreements and each class of ~~Equity Interest in each Loan Party and~~ capital stock or membership interests of the Borrower, each such Subsidiary and each Related Professional Corporation and of each agreement or instrument relating to such structure or ~~capitalization~~capitalization and (ii) the management of the Borrower, each of its Subsidiaries and each Related Professional Corporation (after giving effect to the Recapitalization). (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Agents shall be satisfied that all Existing ~~Debt, other than Surviving Debt,~~ Debt has been (or, upon consummation of the Recapitalization will be) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished concurrently with the funding of the Initial Extension of Credit and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Agents. (ed) ~~Before giving effect to the Transaction, there~~ There shall have occurred no Material Adverse Change (including any event which, in the opinion of the Agents, is reasonably likely to result in a Material Adverse Change) in the business, assets, liabilities (actual and contingent), operations, condition (financial or otherwise), management or prospects of the Borrower and its Subsidiaries, taken as a whole, since ~~December 31~~the date of the most recent audited financial statements of the Borrower delivered to the Administrative Agent; provided, ~~2010~~that the implementation or effectiveness of the final rule entitled "Medicare Program: Revisions to Payment Policies and Adjustments to the Relative Value Units under the Physician Fee Schedule for Calendar Year 1999" published at 63 Fed. Reg. 58814, et seq. (November 2, 1998) shall not be deemed to cause a Material Adverse Change; and no material inaccuracy in such financial statements shall exist. (fe) There shall exist no action, suit, investigation, litigation or proceeding ~~affecting any Loan Party or any of its Subsidiaries~~ pending or threatened in any court or before any ~~court,~~ arbitrator or governmental ~~agency~~ or ~~arbitrator~~ Regulatory Agency or authority that (i) could reasonably be expected to (A) have a ~~Material Adverse Effect other than~~ material adverse effect on the ~~matters described on Schedule 4.01(f~~business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) ~~hereto~~ or management of the Borrower and its Subsidiaries, taken as a whole, (B) materially and adversely affect the ~~“Disclosed Litigation”~~ability of the Borrower or any Subsidiary Guarantor to perform its obligations under the Loan Documents to 75 68 which it is a party or (C) materially and adversely affect the rights and remedies of the Administrative Agent and the Lender Parties under the Loan Documents or (ii) purports to materially and adversely affect any aspect of the ~~legality, validity or enforceability of any~~ Transaction ~~Document~~ or the ~~consummation~~ Facilities (collectively, a "Material Adverse Effect"); provided, that the implementation or effectiveness of the ~~Transaction~~final rule entitled "Medicare Program: Revisions to Payment Policies and Adjustments to the Relative Value Units under the Physician Fee Schedule for Calendar Year 1999" published at 63 Fed. Reg. 58814, et seq. (November 2, 1998) shall not be deemed to cause a Material Adverse Effect; and there shall have been no ~~adverse change~~ Material Adverse Change in the status, or financial effect ~~on, any Loan Party~~ on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule ~~4.01(f) hereto~~4.9. (gf) All ~~governmental~~ governmental, shareholder and other third party consents (except for third party consents with respect to contracts entered into in the ordinary course of business which are not material) and approvals (including under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended) necessary or desirable in connection with each aspect of the Transaction and the other transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Agents) and shall remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any authority; and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Agents that could restrain, ~~in each case that restrains, prevents~~ prevent or ~~imposes~~ impose any materially adverse conditions upon ~~the Transaction. (h) The Borrower shall have paid all accrued fees~~ any aspect of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated Transaction or ~~shall be consummated~~ such other transactions or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled that could seek or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.thre

Appears in 1 contract

Sources: Credit Agreement (Inphynet South Broward Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Article II of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which such conditions precedent have been satisfied): (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified~~) and (except for the Notes) in sufficient copies for each Lender Party:~~): (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j)~~5.01(i) or otherwise, in each case as amended~~, supplemented or otherwise modified from time to time~~, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the ~~first~~ second priority (subject only to the Lien of the First Lien Collateral Agent in favor of the holders of the First Lien Obligations) liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any of the Loan ~~Party~~ Parties as debtor, together with copies of such other financing statements, all as reasonably satisfactory to the Administrative Agent, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~first~~ second priority (subject only to the Lien of the First Lien Collateral Agent in favor of the holders of the First Lien Obligations) liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a ~~party~~party as in full force and effect, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of ~~incorporation or organization~~ formation of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ similar organizational document 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 ~~Organizational Documents~~ charter (or similar organization document) on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, or in the case such Loan Party does not have a Secretary or any Assistant Secretary, any other duly qualified officer of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or similar organizational document of such Loan Party since the date of the Secretary of State’s certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the ~~truth~~ truth, in all material respects, of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit (other than any such representations and warranties that, by their express terms, refer to a specific date, in which case as of such specific date) and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vi) A certificate of the President or a ~~Responsible Officer~~ Vice President and the Secretary or an Assistant Secretary of each Loan Party, or in the case such Loan Party does not have a Secretary or any Assistant Secretary, any other duly qualified officer of such Loan Party, 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. (ixvii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance reasonably satisfactory to the ~~Lender Parties~~Lenders, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or shall reasonably request, including, without limitation, evidence of the ~~Joint Lead Arrangers shall request~~consent of the board of directors of each of Bull Run, G▇▇▇ and TCM and the shareholders of Bull Run. (xviii) ~~Certificates,~~ A certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of each of the Loan ~~Party individually and together with its Subsidiaries, taken as a whole~~Parties, before and after giving effect to the Transaction, from ~~its~~ the Chief Financial ~~Officer~~Officer of the Borrower. (ix) The Intercreditor Agreement, ~~if any~~in substantially the form of Exhibit G hereto. (x) Evidence of the Loan Parties’ insurance coverage reasonably satisfactory to the Administrative Agent, demonstrating that the Loan Parties’ existing insurance coverage remains in effect, together with endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or ~~other Responsible Officer if none~~loss payee, as the case may be. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing ~~or Notice of Issuance, as applicable,~~ relating to the Initial Extension of Credit. (~~xiii~~xii) ~~Favorable opinions~~ A favorable opinion of (A) Proskauer Rose LLP, counsel to the Loan Parties, in substantially the form of Exhibit H-1 hereto and (B) T▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇, LLP and ▇▇▇~~S▇▇▇▇▇▇ ~~Traurig LLP~~ LLP, counsel to the Loan Parties in substantially the form of Exhibit H-2 hereto. (xiii) A favorable opinion of W▇▇▇▇, Tarrant & C▇▇▇▇, LLP, local counsel for the Loan ~~Parties~~Parties in Kentucky, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit I hereto and as to such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (xiv) ~~Evidence satisfactory~~ A favorable opinion of Blooston, Mordkofsky, Dickens, D▇▇▇▇ & P▇▇▇▇▇▇▇▇▇▇ LLP, regulatory counsel for the Loan Parties, in substantially the form of Exhibit J hereto and as to such other matters as the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The ~~Administrative Agent and the Joint Lead~~ Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the ~~charter~~charter or similar organizational document, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or ~~capitalization~~capitalization (including, without limitation, as to the ability of any Subsidiary of the Borrower to pay dividends or make distributions to or otherwise advance funds to, its equity holders), and any FCC Licenses shall be held by an Eligible SPV. (c) ~~All Equity Interests~~ After giving pro forma effect to the Transaction and the Initial Extension of Credit hereunder, the Parent and its Subsidiaries shall have (i) a pro forma consolidated EBITDA (calculated on a pro forma basis in accordance with Regulation S-X under the Securities Act of 1933, as amended and including other adjustments, if any, agreed to by the Arrangers and the Parent, the “Closing Date Pro Forma EBITDA”) for the twelve-month period ended September 30, 2005 of at least $18,000,000, (ii) a ratio of Consolidated Debt of the ~~Guarantors shall be owned by the Borrower or one or more~~ Parent and its Subsidiaries as of the ~~Borrower’s Subsidiaries~~Closing Date to Closing Date Pro Forma EBITDA of not greater than 6.75:1.00, ~~in each case free~~ and ~~clear~~ (iii) a ratio of Consolidated Debt of the Parent and its Subsidiaries as of the Closing Date secured or intended to be secured by a first-priority perfected Lien on any ~~Lien other~~ property or assets of the Parent or any of its Subsidiaries to Closing Date Pro Forma EBITDA of not greater than ~~Liens created under the Loan Documents~~5.25:1.00. (d) The Arrangers shall have received, in form and substance reasonably satisfactory to the Arrangers, (i) copies of the financial statements referred to in Sections 4.01(h) and 4.01(i) and (ii) forecasts prepared by management of balance sheets, income statements and cashflow statements of the Parent and its Subsidiaries, which shall be quarterly for Fiscal Year 2005 and Fiscal Year 2006 and annual thereafter for the term of the this Agreement and the First Lien Facilities. (e) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be satisfied that all Existing ~~Debt~~Debt of the Parent and its Subsidiaries (including such Existing Debt attributed to the G▇▇▇ Businesses) and Bull Run and its Subsidiaries, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated, any and all liens securing such indebtedness shall have been released and that all Surviving Debt shall be in an amount and on terms and conditions reasonably satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010~~Agent. (f) The Arrangers shall be reasonably satisfied with the terms and amounts of any intercompany indebtedness among the Loan Parties and the flow of funds, as of the Effective Date, in connection with this Agreement and the First Lien Facilities. (g) The Loan Parties shall comply with the terms of the Fee Letter. (h) The Arrangers shall be reasonably satisfied with senior management of the Loan Parties. (i) All Governmental Authorizations, Approvals and third party consents necessary in connection with the Transaction shall have been obtained (including, without limitation, the consents of the board of directors of each of Bull Run, G▇▇▇ and TCM and the shareholders of Bull Run and, in any case, without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the operation of the businesses of the Loan Parties or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (j) There shall exist no action, suit, labor dispute, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or or, to the Loan Parties’ knowledge, threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gk) ~~All governmental and third party consents and approvals necessary in connection with the Transaction~~ The Arrangers shall have ~~been obtained~~ completed their legal and confirmatory business, tax, accounting, ERISA, and environmental due diligence concerning the Parent, Bull Run and their respective Subsidiaries (~~without~~ including the ~~imposition of any conditions that are not acceptable~~ G▇▇▇ Businesses), with results in all respects reasonably satisfactory to the ~~Joint Lead~~ Arrangers (including, without limitation, as to the tax free nature of the Merger, the Spin-Off and the ~~Administrative Agent~~Transaction) and shall ~~remain in effect;~~ not have become aware of any material information or other matter (including any matter relating to financial models and ~~no law~~ underlying assumptions relating to the projections affecting the Parent, Bull Run or ~~regulation shall be applicable~~ their respective Subsidiaries (including the G▇▇▇ Businesses), that in the judgment of the ~~Joint Lead~~ Arrangers is inconsistent in a material and adverse manner with any due diligence results or with any information or other matter previously disclosed to the ~~Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction~~Arrangers. (hl) The Arrangers shall be reasonably satisfied that (i) the Parent and its Subsidiaries will be able to meet their obligations under all employee and retiree welfare plans, (ii) the employee benefit plans of the Parent and its ERISA affiliates are, in all material respects, funded in accordance with the minimum statutory requirements, (iii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan, and (iv) no termination of, or withdrawal from, any such employee benefit plan has occurred or is contemplated that could reasonably be expected to result in a material liability. (m) The Arrangers shall have received such other documents, agreements and opinions in connection with this Agreement, all reasonably satisfactory in form and substance, as the Arrangers may reasonably request. (n) The Merger Agreement and the Separation and Distribution Agreement shall be in full force and effect, and the Spin-Off and the Merger shall have been consummated, in all material respects, in accordance with the terms of the Merger Agreement and the Separation and Distribution Agreement, without any waiver or amendment that is adverse to the Lenders unless consented to by the Arrangers of any term, provision or condition set forth therein, and in compliance with all applicable laws. (o) The Borrower shall have received not more than $93,000,000 in gross cash proceeds from the advances under the First Lien Facilities, and the Merger Consideration shall have been paid upon terms and to investors reasonably satisfactory to the Arrangers. (p) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers,~~ Agents and Arrangers and all reasonable expenses of the Agents and ~~the Lender Parties and all accrued expenses of the Joint Lead~~ Arrangers (including the reasonable accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the ~~Lender Parties~~Lenders). (iq) The ~~Refinancing shall have been consummated or shall be consummated or concurrently consummated with~~ representations and warranties contained in each Loan Document are true and correct in all material respects on and as of the ~~Effective Date~~date of the Initial Extension of Credit, ~~all advances~~ before and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable after giving effect to the ~~Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable~~ initial Borrowing and to the ~~Paying Agent)~~application of the proceeds therefrom, as though made on and ~~all Liens and guaranties supporting~~ as of such date, other than any ~~Debt under~~ such representations or warranties that, by their express terms, refer to a specific date other than the ~~Existing Credit Agreement shall have been fully released and terminated~~date of such Borrowing, in which case as of such specific date. (jr) No Default has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom. (s) The ~~Lenders~~ Administrative Agent shall have received ~~all documentation and~~ such other ~~information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations~~approvals, ~~including~~ opinions or documents as the ~~Patriot Act~~Administrative Agent may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Triple Crown Media, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or Citi to continue the Existing Letter of Credit under this Agreement 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of each Lender that has requested the ~~Lenders to the extent requested pursuant to Section 2.16~~same. (ii) ~~A security agreement in substantially the form of Exhibit D hereto (together~~ Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each ~~other security agreement and security agreement supplement delivered pursuant to Section 5.01(j)~~Borrower Party, and, in ~~each~~ the case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of CreditUCC searches, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed in ~~all~~ the jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any ~~Loan~~ Borrower Party as debtor, together with copies of such ~~other~~ financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”)This Agreement, duly executed by ~~each Subsidiary Guarantor~~the Loan Parties and the other parties hereto. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Parent on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (v) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, stating that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and ~~has~~ has, if applicable, filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by a its Secretary, Assistant Secretary or Responsible ~~Officer~~Officer (or those of its general partner or managing member, if applicable) dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section 3.01(a)(v) (or including a copy of such amendment), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) as though made on and as of the date of the Initial Extension of Credit (except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date) and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer,~~ historical operating statements (if any), ~~or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated~~ for the year ending December 31, ~~2010~~2023 of the Parent, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma~~ in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent’s consolidated ~~financial statements as~~ operations. (x) Evidence that all insurance required to be maintained pursuant to the ~~Borrower~~ Loan Documents has been obtained and ~~its Subsidiaries and forecasts prepared by management~~ is in effect. (xi) An opinion of G▇▇▇▇▇▇ Procter LLP, counsel for the ~~Borrower~~Loan Parties, in form and substance reasonably satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Agent. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of ~~Credit~~Credit and dated and delivered to the Administrative Agent at least three Business Days prior to the Closing Date. (xiii) ~~Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP~~ A breakage indemnity letter agreement executed by the Borrower and ~~▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for~~ the ~~Loan Parties,~~ Parent in ~~substantially the forms of respectively Exhibits G-1~~ form and ~~G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may~~ substance reasonably ~~request. (xiv) Evidence~~ satisfactory to the Administrative Agent and dated and delivered to the ~~Joint Lead Arrangers that a nationally recognized Process~~ Administrative Agent ~~shall have been appointed as Process Agent under Section 8.12 hereof~~at least three Business Days prior to the Closing Date. (bxiv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit, the Parent shall be in compliance with the covenants contained in Section 5.04, together with supporting information in form reasonably satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants. (A) The ~~Administrative Agent~~ documentation and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant other information reasonably requested by any Lender at least ten Business Days prior to the ~~Loan Documents~~Closing Date in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the ~~terms~~ Patriot Act and ~~conditions~~ the Beneficial Ownership Regulation, and (B) if the Borrower qualifies as a “legal entity customer” within the meaning of the ~~charter~~Beneficial Ownership Regulation, ~~bylaws and each class of Equity Interest~~ a Beneficial Ownership Certification for the Borrower; in each ~~Loan Party and each such Subsidiary and of each agreement or instrument relating~~ case delivered at least five Business Days prior to ~~such structure or capitalization~~the Closing Date. (cxvi) ~~All Equity Interests of~~ Evidence that the ~~Guarantors shall be owned by~~ Revolving Credit Commitments (as defined in the ~~Borrower~~ Existing Credit Agreement) have been (or ~~one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d~~concurrently herewith are being) ~~The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased~~ terminated in full or otherwise satisfied and ~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers~~extinguished. (eb) ~~Before~~ After giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2023. (fc) There shall exist no action~~, suit~~, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to ~~have~~ result in a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “~~Disclosed~~ Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the ~~Transaction~~transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the ~~Disclosed~~ Material Litigation from that described on Schedule 4.01(f) hereto. (gd) All material governmental and third party consents and approvals necessary in connection with the ~~Transaction~~ transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; , and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~transactions contemplated by the Loan Documents. (he) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the Agents~~ Administrative Agent and the Lender Parties and all ~~accrued~~ reasonable, out‑of‑pocket expenses of the ~~Joint Lead Arrangers~~ Administrative Agent (including the ~~accrued~~ reasonable fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties~~Administrative Agent). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Easterly Government Properties, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Agents (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders that have requested Notes prior to the ~~extent requested pursuant to Section 2.16~~Effective Date. (ii) A security agreement from (a) CBI in substantially the form of Exhibit D D-1 hereto (the "Shared Collateral Security Agreement") and (b) the other Loan Parties in substantially the form of Exhibit D-2 hereto (the "Non-Shared Collateral Security Agreement"; together with the Shared Collateral Security Agreement, each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security ~~Agreement”~~Agreements"), duly executed by each Loan ~~Party~~Party party thereto, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on~~ statements (Form UCC-1 or ~~before~~ a comparable form) or the ~~day of the Initial Extension of Credit~~ equivalent thereof under the Uniform Commercial Code to be filed in the legal name of ~~all jurisdictions that~~ each required Loan Party with the ~~Joint Lead Arrangers may deem necessary or desirable~~ Secretary of State in the state where such Loan Party maintains its chief executive office in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~Agreements, covering the Collateral described in the Security ~~Agreement~~Agreements, in each case completed in a manner satisfactory to Agents and duly executed by the required Loan Party, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security ~~Agreement~~ Agreements that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~ Agreements has been taken (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) A guaranty from (a) the Subsidiary Guarantors who have guaranteed the Obligations of IXCS and its Subsidiaries under the Loan Documents (the "IXCS Subsidiary Guaranty") and (b) the Subsidiary Guarantors who have guaranteed the Obligations of CBI and its Subsidiaries under the Loan Documents (the "CBI Subsidiary Guaranty"), in each case, in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary ~~Guaranty”~~Guaranties"), duly executed by each Subsidiary ~~Guarantor~~Guarantor party thereto. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors (or persons performing similar functions), or, in the case of wholly owned Subsidiaries, action by unanimous written consent of the ~~members or managers~~ sole shareholder, of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party, the consummation of each aspect of the Transaction involving or affecting such Loan Party and the other transactions contemplated by any of the foregoing, and of all documents evidencing other necessary corporate action and governmental and other third party ~~approvals and~~ approvals, consents, ~~if any~~authorizations, notices and filings of actions with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a ~~party~~party (other than the approvals by certain state public utility commissions listed in the attached Schedule 4.01(d) that have not been obtained as of the date hereof but the failure to obtain such approvals either individually or in the aggregate could not be expected to have a Material Adverse Effect). (v) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation (or ~~organization~~ organization) of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter (or ~~articles of organization, as the case may be (“Organizational Documents”~~similar constitutive document) of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated (or ~~organized~~ organized) and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation (or organization). (vi) A copy of a certificate of the Secretary of State of each jurisdiction ~~reasonably requested by the Joint Lead Arrangers~~in which a Loan Party is qualified or licensed as a foreign corporation or limited liability company, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation or limited liability company, as the case may be, in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President or Treasurer and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter, articles of incorporation or certificate of formation, as applicable, of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws or ~~operating~~ limited liability company agreement, as applicable, of such Loan Party as in effect on the date on which the ~~resolutions~~ resolutions, or actions by written consent, as applicable, referred to in Section 3.01(a)(iv) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) ~~the due incorporation/organization and good standing~~ no proceeding for dissolution or ~~valid existence~~ liquidation of such Loan Party ~~as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of~~ has been commenced by such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as they relate to such Loan Party as though made on and as of the date of the Initial Extension of Credit (except to the extent they expressly relate to an earlier date, in which case certifying that such representations and warranties are true and correct as of such earlier date) and (E) the absence of any event relating to such Loan Party occurring and continuing, or ~~resulting~~ reasonably expected to result from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the ~~officers~~ officers, partners, members or equivalent persons of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (x) ~~Certificates~~Certified copies of a certificate of merger or other confirmation satisfactory to the Agents of the consummation of the Merger from the Secretary of State of the State of Delaware. (xi) Certificates and letters, in ~~substantially~~ form and substance reasonably satisfactory to the ~~form of Exhibit F~~Lender Parties, attesting to the Solvency of ~~each Loan Party individually~~ CBI and ~~together with~~ its ~~Subsidiaries, taken as~~ Subsidiaries on a ~~whole,~~ Consolidated basis before and after giving effect to the ~~Transaction,~~ Transaction (and the incurrence of indebtedness related thereto) from ~~its~~ the Chief Financial ~~Officer, if any, or other Responsible~~ Officer ~~if none~~of CBI. (xixii) ~~Audited annual financial~~ Certified copies of all of the agreements, instruments and other documents evidencing or setting forth the terms and conditions of Surviving Debt that is outstanding or has commitments for the extension of credit on the Effective Date in an aggregate amount of at least $1,000,000 in each case, duly executed by the parties thereto together with all Exhibits and Schedules thereto. (xiii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Agents shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, and copies, certified by a Responsible Officer of the Borrower of (A) audited consolidated balance sheets and related statements ~~dated~~ of income, stockholders equity and cash flows of each Borrower for the fiscal years ended December 31, ~~2010~~1994, ~~interim~~ December 31, 1995, December 31, 1996, December 31, 1997, December 31, 1998, (B) the unaudited consolidated and, to the extent available, consolidating balance sheets and related financial statements ~~dated~~ of each Borrower for each completed fiscal quarter since the ~~end~~ date of the ~~most recent fiscal quarter for which~~ audited financial ~~statements are available,~~ statements, (C) pro forma consolidated ~~financial statements as~~ and, to the ~~Borrower~~ extent available, consolidating balance sheet of CBI as of September 30, 1999 after giving effect to the Merger and ~~its Subsidiaries and~~ the making of the Advances hereunder, together and (D) forecasts prepared by management of the ~~Borrower~~CBI, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a quarterly and annual basis for the Company and CBI for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~xiv) A certificate of a Responsible Officer of CBI that shortly before and immediately after giving pro forma effect to the Transaction, CBI and its Subsidiaries will be in compliance with Section 5.04. (xv) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries. (xvi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xvii) Favorable opinions of Cravath, Swaine & ▇▇▇▇▇, with respect to the Loan Documents, Frost & ▇▇▇▇▇▇, with respect to the CBI entities (excluding those issues addressed in the Steptoe & ▇▇▇▇▇▇▇ opinion), Steptoe & ▇▇▇▇▇▇▇, with respect to certain regulatory issues related to the CBI entities, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, with respect to the IXC entities (excluding those issues addressed in the Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol opinion), Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol, with respect to regulatory issues related to the IXC entities, and Graves, Doughterty, ▇▇▇▇▇ & ▇▇▇▇▇, with respect to issues relating to the Uniform Commercial Code of the State of Texas, in the form reasonably acceptable to the Agents. (xviii) A favorable tax opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ~~LLP~~ counsel for IXC, and a favorable opinion ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇~~▇▇▇ Traurig LLP~~ , Esq., General Counsel to CBI, delivered in connection with the Merger, which opinion is either (A) addressed to the Agents and the Lender Parties and expressly states that the Agents and the Lender Parties may rely on such opinion or (B) accompanied by a reliance letter from such counsel addressed to the Agents and the Lender Parties that expressly states that the Agents and the Lender Parties may rely on such opinion. (xix) A favorable opinion of Shearman & Sterling, counsel for the ~~Loan Parties~~Administrative Agent, in ~~substantially the forms of respectively Exhibits G-1~~ form and ~~G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ substance satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~Agent. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be reasonably satisfied with the ~~corporate~~ organizational and legal structure and capitalization of each Loan Party and each of its Subsidiaries in which the Equity ~~Interests~~ Interest in ~~which~~ such Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing ~~Debt, other than Surviving Debt,~~ Debt listed on Schedule 4.01(s) has been prepaid, redeemed or defeased in full (or scheduled for payment, redemption or defeasance as set forth on Schedule 4.01(s)) or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions reasonably satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before giving effect and immediately after giving pro forma effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~1998, except as disclosed in the Form S-4 of CBI filed with the Securities and Exchange Commission on September 13, 1999. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the best knowledge of any Loan Party or any of its Subsidiaries, threatened before any court, governmental agency or arbitrator that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any Transaction Document except for the matters described in Schedule 4.01(f) hereto (the "Disclosed Litigation"), as they relate to the Merger or the consummation of the Transaction, ; and there shall have been no material adverse change in the status, or the reasonably anticipated financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of ~~the~~ such Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All governmental and third party consents and approvals and authorizations of, notices and filings to or with, and other actions by any other Person necessary in connection with any aspect of the ~~Transaction~~ Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated thereby, shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in ~~effect~~effect (other than the approvals by certain state public utility commissions listed in the attached Schedule 4.01(d) that have not been obtained as of the date hereof but the failure to obtain such approvals either individually or in the aggregate could not be expected to have a Material Adverse Effect); all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (hg) The ~~Borrower~~ Lender Parties shall have ~~paid all accrued fees~~ completed a due diligence investigation of ~~the Joint Lead Arrangers~~CBI, the ~~Agents~~ Company and ~~the Lender Parties~~ their respective Subsidiaries in scope, and ~~all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel~~ with results, satisfactory to the Lender Parties). , and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe (i) ~~The Refinancing shall have been consummated~~ that the Information Memorandum was or ~~shall be consummated~~ has become misleading, incorrect or ~~concurrently consummated with~~ incomplete in any material respect, (ii) that, following the ~~Effective Date, all advances and other amounts owing under~~ consummation of the ~~Existing Credit Agreement shall have been repaid in full~~Merger, the ~~commitments thereunder shall~~ Borrower and its Subsidiaries would not have ~~terminated~~ good and marketable title to all material assets of the ~~letters~~ Company and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger will not have a Material Adverse Effect on any Loan Party or any of ~~credit issued thereunder shall have been canceled or~~ its Subsidiaries; without limiting the ~~reimbursement~~ generality of ~~draws thereunder provided for in a manner acceptable to~~ the ~~Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to~~ foregoing, the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.Lender

Appears in 1 contract

Sources: Credit Agreement (Cincinnati Bell Inc /Oh/)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of any Issuing Bank to issue or continue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of ~~the Lenders to the extent~~ each Lender which has requested ~~pursuant to Section 2.16~~one. (ii) A An amended and restated security agreement in substantially the form of Exhibit D F hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j~~5.01 (j), in each case as amended~~, supplemented or otherwise modified from time to time~~, the “Security Agreement”), duly executed by each Loan ~~Party~~Party that owns Borrowing Base Assets, together with: (A) ~~certificates representing~~ (I) with respect to each Guarantor that is not a Guarantor (as defined in the ~~Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B)~~ Existing Agreement), acknowledgment copies of proper UCC-1 financing statements and (II) with respect to each other Guarantor, acknowledgment copies of proper UCC-3 continuation financing statements, in each case, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to ~~perfect~~ perfect, protect and ~~protect~~ continue (if applicable) the first priority liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (CB) completed requests for ~~information~~information dated a recent date, ~~dated on or before~~ including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the ~~date~~ case of ~~the Initial Extension of Credit~~UCC searches, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) certified copies of the Management Agreements and all amendments thereto entered into on or before the Closing Date with respect to each Borrowing Base Asset; (E) ~~evidence of the insurance required~~ a subordination agreement executed and delivered by the ~~terms~~ property manager of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangerseach Borrowing Base Asset, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may reasonably deem necessary or desirable 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, ~~UCC-3~~ UCC termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) ~~A guaranty~~ (A) With respect to each New Borrowing Base Asset, deeds of trust, trust deeds and mortgages in substantially the form of Exhibit E G hereto and (B) with respect to each Existing Borrowing Base Asset, an amendment and restatement of the applicable Mortgage (as defined in the Existing Agreement) previously delivered for such Existing Borrowing Base Asset (in each case, with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) (together with each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented~~ the “Mortgages”), in each case duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered on or ~~otherwise modified from time~~ before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to ~~time~~create a valid first and subsisting Lien on the collateral described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities, (B) (I) with respect to each New Borrowing Base Asset, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies and (II) with respect to each Existing Borrowing Base Asset, either fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or endorsements (including date down endorsements) to the Mortgage Policies (as defined in the Existing Agreement) (collectively, the “~~Subsidiary Guaranty~~Mortgage Policies”), in each case in form and substance, with (if applicable) endorsements (including zoning endorsements where available) and in amount acceptable to the Administrative Agent, issued by a title insurer acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Collateral Agent, showing, as to the Borrowing Base Assets, all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Collateral Agent, or existing surveys in lieu thereof so long as each such survey is accompanied by an affidavit of no-change, satisfactory to the Collateral Agent and sufficient for the applicable title insurer to eliminate all standard survey-related exceptions to the applicable Mortgage Policy, (D) engineering, soils, seismic, environmental and other similar reports as to the Borrowing Base Assets, in form and substance and from professional firms acceptable to the Administrative Agent, (E) estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of any Borrowing Base Assets subject to a Qualifying Ground Lease, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected Borrowing Base Asset, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent, (F) an Appraisal of each Borrowing Base Asset described in the Mortgages, (G) copies of all material licenses, permits and approvals, including, without limitation, all Healthcare Licenses relating to each Borrowing Base Asset and, if available, the certificate of occupancy for each Borrowing Base Asset, (H) a zoning report for each Borrowing Base Asset issued by Planning and Zoning Resources Corp. or another professional firm acceptable to the Administrative Agent, (I) copies of each Management Agreement, Qualifying Ground Lease, and all amendments thereto, entered into with respect to each of the Borrowing Base Assets, (J) copies of all leases (including, without limitation, all leases with Affiliates, but excluding all Tenancy Leases) and Material Contracts relating to each of the Borrowing Base Assets, (K) copies of all Liens on each of the Borrowing Base Assets, including, without limitation, any reciprocal easement agreements, easements and other items of record, and (L) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or desirable and evidence that all other action that the Collateral Agent may reasonably deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) This Agreement duly executed by the Loan Parties and the other parties thereto. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Borrower on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vvi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vivii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by its President or a Vice President (or other Responsible Officer) and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. Notwithstanding the foregoing, items (D) and (E) in the previous sentence may be certified in a separate officer’s certificate by the Treasurer and Chief Financial Officer of each Loan Party, or general partner or managing member (if any) of each Loan Party. (~~viii~~ix) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ixx) ~~Certified copies~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested. (xi) Evidence of ~~each~~ insurance (which may consist of binders or certificates of insurance) naming the ~~Related Documents~~Administrative Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, ~~duly executed by the parties thereto~~ and in ~~form~~ such amounts and ~~substance~~ covering such risks, as is satisfactory to the Lender Parties, ~~together with all agreements~~including, ~~instruments and other documents delivered in connection therewith as~~ without limitation, the ~~Administrative Agent or~~ insurance required by the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end terms of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent Security Agreement and the ~~Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Mortgages. (xii) ~~A Notice~~ An opinion of ~~Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of~~ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇~~Worcester LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ New York counsel for the Loan Parties, with respect to the matters (and in substantially the ~~forms of respectively Exhibits G-1 and G-2~~ form) set forth in Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xiii) ~~Evidence satisfactory to~~ An opinion of local counsel for the ~~Administrative Agent and~~ Loan Parties (A) in the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests states in which ~~Subsidiaries~~ the Borrowing Base Assets are ~~being pledged pursuant to~~ located, in substantially the form of Exhibit E-2 hereto, and (B) in the states in which the Loan ~~Documents~~Parties are organized or formed, ~~including~~ in substantially the ~~terms and conditions~~ form of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s SubsidiariesExhibit E-3 hereto, in each case ~~free and clear of any Lien~~ covering such other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.matter

Appears in 1 contract

Sources: Credit Agreement (Five Star Quality Care, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section ~~2.16~~2.15. (ii) Evidence satisfactory to it that either (i) Senior Subordinated Notes in a principal amount of $175,000,000 have been issued pursuant to the Senior Subordinated Indenture, together with true and complete copies of the Senior Subordinated Indenture or (ii) Bridge Loans in a principal amount of at least $85,000,000 are outstanding, together with true and complete copies of the Bridge Documentation. (iii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan ~~Party~~ Party, the Acquired Businesses or their respective Subsidiaries as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority~~ liens and security ~~interests~~ interests, and the priority thereof, created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (~~iii~~iv) A guaranty substantially in ~~substantially~~ the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (ivv) An intellectual property security agreement in substantially the form of Exhibit C to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (vi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ transactions contemplated hereby 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 ~~Transaction~~ transactions contemplated hereby and each Loan Document to which it is or is to be a party. (vvii) A copy of a certificate of the Secretary of State of the jurisdiction of ~~incorporation or~~ organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ other constitutive document of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter or other constitutive document on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiviii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or other constitutive document of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing document 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~ix) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixx) ~~Certified copies of each~~ Copies of the ~~Related~~ Acquisition Documents, ~~duly executed by the parties thereto and~~ which shall be in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (xxi) ~~Certificates,~~ Certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole~~Parties, before and after giving effect to the ~~Transaction~~Acquisition and the transactions contemplated hereby, from its Chief Financial ~~Officer~~Officer or Treasurer, ~~if any, or other Responsible Officer if none~~as the case may be. (xixii) ~~Audited annual~~ Such financial, business and other information regarding each Loan Party, the Acquired Businesses and their respective Subsidiaries as the Administrative Agent shall have requested, including, without limitation: (A) audited combined financial statements ~~dated~~ of the Acquired Businesses and their respective Subsidiaries for the fiscal year ended December 31, ~~2010~~2002, ~~interim financial statements dated the end~~ (B) an unaudited income statement of the ~~most recent fiscal quarter~~ Acquired Businesses and their respective Subsidiaries for ~~which financial statements are available~~the Fiscal Quarter ended March 31, 2003, (C) pro forma ~~consolidated financial statements as to~~ Consolidated balance sheet of the Borrower and its Subsidiaries giving effect to the Acquisition for the Fiscal Quarter ending immediately prior to closing, which in each case, shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and ~~forecasts prepared by management~~ all other accounting rules and regulations of the ~~Borrower~~SEC promulgated thereunder, ~~in form~~ and ~~substance satisfactory~~ (D) a written certification from the Chief Financial Officer that the pro forma financial statements delivered pursuant to clause (C) above and the forecasts heretofore delivered to the Administrative Agent were prepared in good faith on the basis of the assumptions stated therein, which assumptions are fair and ~~the Joint Lead Arrangers,~~ reasonable in light of ~~balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~then existing conditions. (~~xii~~xiii) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance with a reputable insurer and on terms and in amounts reasonably acceptable to the Administrative Agent. (xiv) Copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries as the Administrative Agent shall request. (xv) Copies of all Material Contracts of each Loan Party and its Subsidiaries as the Administrative Agent shall request. (xvi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xvii) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇~~Coie LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit G hereto and as to such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request~~. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~. (b) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be reasonably satisfied ~~with~~ with, after giving effect to the Acquisition (and other related transactions, including any related mergers), the corporate and legal structure and capitalization of each Loan Party and each of its ~~Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Subsidiaries, including the terms and conditions of the charter, bylaws or other constitutive documents and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished from cash on hand of the Borrower and all commitments relating thereto terminated and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers~~Agent. (ed) ~~Before giving effect to the Transaction, there~~ There shall have occurred no Material Adverse Change since ~~December~~ January 31, ~~2010~~2003. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan ~~Party~~ Party, the Acquired Businesses or any of ~~its~~ their respective Subsidiaries pending or threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse ~~Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or~~ Effect, (ii) purports to affect the legality, validity or enforceability of any ~~Transaction Document~~ Loan Document, (iii) seeks to enjoin, restrain, restrict, set aside or prohibit, to impose material conditions upon, or to obtain substantial damages in respect of, the consummation of the ~~Transaction, and there shall have been no adverse change~~ Acquisition or the transactions relating thereto or contemplated hereby or (iv) in the ~~status~~reasonable opinion of the Bookrunner/Co-Arranger, ~~or financial effect on~~is material to the Borrower and its Subsidiaries, ~~any Loan Party~~ taken as a whole, or any of their respective assets, business operations or financial condition. (f) There shall be no pending or threatened litigation, proceeding, bankruptcy or insolvency, injunction, order or claim with respect to the Borrower, the Acquired Businesses or any of their respective Subsidiaries that is material to the Borrower and its Subsidiaries, ~~of the Disclosed Litigation from that described on Schedule 4.01(f) hereto~~taken as a whole. (g) All ~~governmental~~ Governmental Authorizations and third party consents and approvals necessary in connection with the ~~Transaction~~ Acquisition (and any related mergers) and the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Acquisition (and any related mergers) and the transactions contemplated hereby or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The ~~Refinancing~~ Acquisition and related transactions shall have been consummated for a purchase price not in excess of (pound)55,000,000 (excluding transaction costs and expenses) strictly in accordance with the terms of the Acquisition Agreement, without any waiver or amendment not consented to by the Administrative Agent of any term, provision or condition set forth therein, and in compliance with all applicable laws. The Administrative Agent shall be ~~consummated or concurrently consummated~~ reasonably satisfied with the ~~Effective Date~~Acquisition Documents and all legal, ~~all advances~~ tax and other ~~amounts owing under~~ matters relating to the ~~Existing Credit~~ Acquisition or to the Borrower and its Subsidiaries after giving effect thereto. The Acquisition Agreement shall ~~have been repaid~~ be in ~~full, the commitments thereunder shall have terminated~~ full force and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedeffect. (j) ~~The Lenders~~ Neither the Administrative Agent nor the Bookrunner/ Co-Arranger shall have ~~received all documentation~~ become aware of any information, event, change or other matter that is inconsistent with any confidential information or other matter previously disclosed to them. (k) The Bookrunner/ Co-Arranger and ~~other information required~~ the Administrative Agent shall be reasonably satisfied that (i) Pro Forma EBITDA (as determined by ~~bank regulatory authorities under applicable “know your customer”~~ the Administrative Agent) of the Borrower and ~~anti-money laundering rules~~ its Subsidiaries for the four consecutive quarterly periods ending with the last calendar quarter immediately preceding the date hereof shall not be less than $75,000,000; and ~~regulations, including~~ (ii) the ~~Patriot Act~~Leverage Ratio (as determined by the Administrative Agent) of the Borrower and its Subsidiaries (after giving effect to the Acquisition on a pro forma basis as if the Acquisition had been consummated on the first day of the most recently completed four consecutive Fiscal Quarters) shall not exceed 2.5:1.0 as of the date hereof.

Appears in 1 contract

Sources: Credit Agreement (Esterline Technologies Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or ~~of any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for ~~the~~ any Notes) in sufficient copies for each Lender Party: (i) ~~The~~ Notes payable to the order of the Lenders to the extent requested by any Lender pursuant to Section ~~2.16~~2.15. (ii) A Notice of Borrowing and a Borrowing Base Certificate relating to the Initial Extension of Credit. (iii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, amended and restated, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by ~~each Loan Party~~the Borrower, together with: (A) certificates representing the Pledged ~~Shares referred to therein~~ Shares, if any, accompanied by undated stock powers executed in blank and instruments evidencing the Pledged ~~Debt~~ Debt, if any, indorsed in blank, (B) ~~acknowledgment~~ executed copies of proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements under the Uniform Commercial Code of the States of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens and security interests~~ Liens created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described in the Security Agreement, (C) ~~completed requests for information, dated~~ Landlord consents and bailee letters from the Persons listed on ~~or before~~ Schedule 3.01(a)(iii)(C) in form and substance satisfactory to the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statementsAdministrative Agent, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement, (F) copies of the Assigned Agreements, if any, referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, (G) executed termination statements (Form UCC-3 or a comparable form), in proper form to be duly filed on the date of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem desirable in order to terminate or amend existing Liens on the Collateral ~~Agent~~described in the Security Agreement, (H) the Blocked Account Letters referred to in the Security Agreement, duly executed by each Blocked Account Bank listed on ~~behalf of the Lender Parties, as additional insured~~ Schedule 3.01(a)(iii)(H) in form and ~~loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is~~ substance satisfactory to the Administrative ~~Agents and the Joint Lead Arrangers~~Agent, and (FI) evidence that all ~~other~~ action not otherwise referred to in this Section that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantortaken. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting termination letter from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of ~~the Related Documents, duly executed by the parties thereto~~ BT Commercial Corporation and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory BNY International Limited to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the ~~Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP~~ satisfaction and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions termination of the ~~charter, bylaws~~ Existing Debt identified in paragraphs 1 and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described 2 on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent4.01(q) and ~~shall remain in effect;~~ release of all collateral and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transactionsecurity interests relating thereto. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Safety 1st Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent (unless otherwise specified)~~ Lenders, and in sufficient copies (except for the Notes~~) in sufficient copies~~ ), for each Lender Party: (i) The Notes payable to the order of the Lenders to duly executed by the ~~extent requested pursuant to Section 2.16~~Borrower. (ii) A security agreement in substantially the form of ~~Exhibit D hereto~~ EXHIBIT H granting to the Administrative Agent, for the ratable benefit of the Lenders, a first and only priority security interest (subject only to Permitted Liens) in the Collateral described therein (together with each other security agreement ~~and security agreement supplement~~ delivered pursuant to Section ~~5.01(j)~~5.13, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, ~~the “Security Agreement”~~each a "SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsproper, duly ~~filed on or before the day of the Initial Extension of Credit~~ executed financing statements under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first and only priority ~~liens~~ Liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,; (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed ~~in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Borrower or any other Loan Party as debtor, together with copies of such ~~other~~ financing statements,; (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,; (ED) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement; (E) [Intentionally Omitted]; (F) original stock certificates representing the ~~Collateral~~ Pledged Shares referred to in the Security Agreement, accompanied by undated stock powers executed in blank and irrevocable proxies; (G) in the case of the Borrower's Foreign Subsidiaries, all action necessary to allow the Administrative Agent to obtain a valid and enforceable, first priority, perfected security interest in 65% of the stock of each Foreign Subsidiary and a memorandum to the Administrative Agent from appropriate foreign counsel confirming that the Administrative Agent, on behalf of the ~~Lender~~ Secured Parties, has obtained a valid and enforceable first priority perfected security interest in the relevant Pledged Stock or outlining the steps necessary to obtain a perfected security interest in the relevant Pledged Stock; and (H) a duly executed note assignment agreement in substantially the form of EXHIBIT F hereto (as ~~additional insured~~ amended, modified and ~~loss payee with such responsible~~ supplemented from time to time, the "NOTE ASSIGNMENT AGREEMENT") covering (and ~~reputable insurance companies or associations~~together with) all intercompany notes in substantially the form of EXHIBIT I hereto (each an "Intercompany Note" and collectively, the "INTERCOMPANY NOTES") made by the Borrower's Subsidiaries payable to the Borrower and ~~in such amounts and covering such risks, as is satisfactory~~ duly endorsed to the Administrative ~~Agents and the Joint Lead Arrangers, and~~Agent; (FI) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first and only priority liens and security interests created under the Security Agreement has been ~~taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related Documents, Mortgages duly executed by the ~~parties thereto and in form and substance satisfactory to the Lender Parties~~applicable Loan Party for each Mortgaged Property listed on SCHEDULE 4.21, together with evidence that counterparts of the Mortgages have been delivered to a title insurance company (reasonably acceptable to the Lenders) insuring the Lien of the Mortgages for recording in all ~~agreements~~places to the extent necessary or desirable, ~~instruments~~ in the reasonable judgment of the Lenders, to create a valid and ~~other documents delivered~~ enforceable first priority lien on each Mortgaged Property listed on SCHEDULE 4.21 (subject only to Permitted Real Property Encumbrances) in ~~connection therewith as~~ favor of the Administrative Agent (or ~~the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form~~ a trustee acting on behalf of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent ~~and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii~~required or desired under local law) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions benefit of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Secured Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.;

Appears in 1 contract

Sources: Credit Agreement (Cantel Medical Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ ------------------------------------------------------------------ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of ~~the Lenders to the extent~~ each respective Lender (if requested ~~pursuant to Section 2.16~~by any such Lender). (ii) A security ~~agreement~~ agreement, in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) where applicable, certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing statements, ~~duly filed on or before the day of the Initial Extension of Credit~~ in form for filing, under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and~~ all other ~~effective financing statements filed~~ documents for recording and filing, in ~~all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor~~proper form, ~~together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of~~ for or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement ~~has been~~ is ready to be taken concurrently with the Initial Extension of Credit (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination statements ~~and landlords’ and bailees’ waiver and consent agreements~~with respect to the Existing Credit Agreement). (iii) A ~~guaranty~~ guaranty, in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary Guaranty”"), duly executed by each Subsidiary Guarantor. (iv) An intellectual property security agreement, in substantially the form annexed to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "Intellectual Property Security Agreement"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement is ready to be taken concurrently with the Initial Extension of Credit. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction 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~~ Governmental Authorizations and other necessary corporate actions or third party approvals and consents, if any, with respect to the Transaction and each Loan Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter (or ~~articles of organization, as the case may be (“Organizational Documents”~~comparable Constitutive Document) of such Loan Party and each amendment thereto on file in such Secretary’s 's office ~~and~~ (B) that ~~(1)~~ such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's (or comparable Constitutive Document) on file in such Secretary’s 's office, ~~(2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate~~ and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificateincorporation. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or comparable Constitutive Document) of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ comparable Constitutive Document) of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, and (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit except for representations and ~~(E) the absence~~ warranties that by their terms speak as of ~~any event occurring and continuing~~another specific date, ~~or resulting from the Initial Extension~~ which shall be true as of ~~Credit, that constitutes a Default~~such specific date. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements dated December 31, ~~2010~~2000, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma ~~consolidated~~ financial statements as to the Borrower and ~~its Subsidiaries and~~ forecasts prepared by management of the ~~Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers~~Company, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for ~~each year following the Effective Date until the Termination Date~~five years thereafter. (~~xii~~x) Evidence of insurance naming the Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance. (xi) A Notice of Borrowing or Notice of Issuance, as applicable. (xii) A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ~~relating~~ general counsel for the Loan Parties, in substantially the form of Exhibit F hereto and as to such other matters as any Lender Party through the ~~Initial Extension of Credit~~Administrative Agent may reasonably request. (xiii) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ special counsel ~~for~~ to the ~~Loan~~ Lender Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (~~b) ~~The Administrative Agent~~ All Governmental Authorizations and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; and no ~~law or regulation~~ Requirements of Law shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the Transaction. (hc) The Borrower shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents. (~~including~~ d) The Borrower shall have issued the ~~accrued fees and expenses~~ subordinated notes referred to in clause (iii) of ~~counsel to~~ the ~~Joint Lead Arrangers and local counsel to the Lender Parties)~~definition of "Subordinated Notes." (i) ~~The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other~~ All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have ~~been repaid~~ been, or concurrently with the Initial Extension of Credit made on the Closing Date shall be, paid in ~~full, the commitments thereunder shall have terminated~~ full and ~~the~~ evidenced by a payoff letter or payoff letters ~~of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable~~ delivered by such lenders and agents to the ~~Paying Agent~~ Administrative Agent, (~~it being understood that treating such letters~~ ii) all commitments of ~~credit as~~ the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit) shall have been, or concurrently with the Initial Extension of Credit ~~hereunder is acceptable to~~ made on the ~~Paying Agent)~~Closing Date shall be, ~~and all Liens and guaranties supporting~~ terminated in accordance with the terms of the Existing Credit Agreement, (iii) the lenders or any ~~Debt~~ collateral agent under the Existing Credit Agreement shall have ~~been fully released~~ executed such instruments (including without limitation Uniform Commercial Code termination statements) and ~~terminated.~~ agreed to take such other actions as are reasonably necessary to terminate or release all security interests granted in connection with the Existing Credit Agreement and (jiv) ~~The Lenders~~ adequate arrangements shall have ~~received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including~~ been made with the ~~Patriot Act~~issuer of the Existing Letters of Credit concerning the continuation thereof.

Appears in 1 contract

Sources: Credit Agreement (Tri City Dialysis Center Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section ~~2.16~~2.15. (ii) Evidence satisfactory to it that either (i) Senior Subordinated Notes in a principal amount of $175,000,000 have been issued pursuant to the Senior Subordinated Indenture, together with true and complete copies of the Senior Subordinated Indenture or (ii) Bridge Loans in a principal amount of at least $85,000,000 are outstanding, together with true and complete copies of the Bridge Documentation. (iii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan ~~Party~~ Party, the <PAGE> 39 Acquired Businesses or their respective Subsidiaries as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority~~ liens and security ~~interests~~ interests, and the priority thereof, created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (~~iii~~iv) A guaranty substantially in ~~substantially~~ the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary Guaranty”"), duly executed by each Subsidiary Guarantor. (ivv) An intellectual property security agreement in substantially the form of Exhibit C to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "Intellectual Property Security Agreement"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (vi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ transactions contemplated hereby 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 ~~Transaction~~ transactions contemplated hereby and each Loan Document to which it is or is to be a party. (vvii) A copy of a certificate of the Secretary of State of the jurisdiction of ~~incorporation or~~ organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ other constitutive document of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter or other constitutive document on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiviii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the <PAGE> 40 date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or other constitutive document of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing document 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~ix) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixx) ~~Certified copies of each~~ Copies of the ~~Related~~ Acquisition Documents, ~~duly executed by the parties thereto and~~ which shall be in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (xxi) ~~Certificates,~~ Certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole~~Parties, before and after giving effect to the ~~Transaction~~Acquisition and the transactions contemplated hereby, from its Chief Financial ~~Officer~~Officer or Treasurer, ~~if any, or other Responsible Officer if none~~as the case may be. (xixii) ~~Audited annual~~ Such financial, business and other information regarding each Loan Party, the Acquired Businesses and their respective Subsidiaries as the Administrative Agent shall have requested, including, without limitation: (A) audited combined financial statements ~~dated~~ of the Acquired Businesses and their respective Subsidiaries for the fiscal year ended December 31, ~~2010~~2002, ~~interim financial statements dated the end~~ (B) an unaudited income statement of the ~~most recent fiscal quarter~~ Acquired Businesses and their respective Subsidiaries for ~~which financial statements are available~~the Fiscal Quarter ended March 31, 2003, (C) pro forma ~~consolidated financial statements as to~~ Consolidated balance sheet of the Borrower and its Subsidiaries giving effect to the Acquisition for the Fiscal Quarter ending immediately prior to closing, which in each case, shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and ~~forecasts prepared by management~~ all other accounting rules and regulations of the ~~Borrower~~SEC promulgated thereunder, ~~in form~~ and ~~substance satisfactory~~ (D) a written certification from the Chief Financial Officer that the pro forma financial statements delivered pursuant to clause (C) above and the forecasts heretofore delivered to the Administrative Agent were prepared in good faith on the basis of the assumptions stated therein, which assumptions are fair and ~~the Joint Lead Arrangers,~~ reasonable in light of ~~balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~then existing conditions. (~~xii~~xiii) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance with a reputable insurer and on terms and in amounts reasonably acceptable to the Administrative Agent. <PAGE> 41 (xiv) Copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries as the Administrative Agent shall request. (xv) Copies of all Material Contracts of each Loan Party and its Subsidiaries as the Administrative Agent shall request. (xvi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xvii) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇~~Coie LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit G hereto and as to such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request~~. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~. (b) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be reasonably satisfied ~~with~~ with, after giving effect to the Acquisition (and other related transactions, including any related mergers), the corporate and legal structure and capitalization of each Loan Party and each of its ~~Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Subsidiaries, including the terms and conditions of the charter, bylaws or other constitutive documents and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished from cash on hand of the Borrower and all commitments relating thereto terminated and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers~~Agent. (ed) ~~Before giving effect to the Transaction, there~~ There shall have occurred no Material Adverse Change since ~~December~~ January 31, ~~2010~~2003. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan ~~Party~~ Party, the Acquired Businesses or any of ~~its~~ their respective Subsidiaries pending or threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse ~~Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or~~ Effect, (ii) purports to affect the legality, validity or enforceability of any ~~Transaction Document~~ Loan Document, (iii) seeks to enjoin, restrain, restrict, set aside or prohibit, to impose material conditions upon, or to obtain substantial damages in respect of, the consummation of the ~~Transaction, and there shall have been no adverse change~~ Acquisition or the transactions relating thereto or contemplated hereby or (iv) in the ~~status~~reasonable opinion of the Bookrunner/Co-Arranger, ~~or financial effect on~~is material to the Borrower and its Subsidiaries, ~~any Loan Party~~ taken as a whole, or any of their respective assets, business operations or financial condition. (f) There shall be no pending or threatened litigation, proceeding, bankruptcy or insolvency, injunction, order or claim with respect to the Borrower, the Acquired Businesses or any of their respective Subsidiaries that is material to the Borrower and its Subsidiaries, ~~of the Disclosed Litigation from that described on Schedule 4.01(f) hereto~~taken as a whole. (g) All ~~governmental~~ Governmental Authorizations and third party consents and approvals necessary in connection with the ~~Transaction~~ Acquisition (and any related mergers) and the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~<PAGE> 42 Acquisition (and any related mergers) and the transactions contemplated hereby or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The ~~Refinancing~~ Acquisition and related transactions shall have been consummated for a purchase price not in excess of [POUND] 55,000,000 (excluding transaction costs and expenses) strictly in accordance with the terms of the Acquisition Agreement, without any waiver or amendment not consented to by the Administrative Agent of any term, provision or condition set forth therein, and in compliance with all applicable laws. The Administrative Agent shall be ~~consummated or concurrently consummated~~ reasonably satisfied with the ~~Effective Date~~Acquisition Documents and all legal, ~~all advances~~ tax and other ~~amounts owing under~~ matters relating to the ~~Existing Credit~~ Acquisition or to the Borrower and its Subsidiaries after giving effect thereto. The Acquisition Agreement shall ~~have been repaid~~ be in ~~full, the commitments thereunder shall have terminated~~ full force and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedeffect. (j) ~~The Lenders~~ Neither the Administrative Agent nor the Bookrunner/ Co-Arranger shall have ~~received all documentation~~ become aware of any information, event, change or other matter that is inconsistent with any confidential information or other matter previously disclosed to them. (k) The Bookrunner/ Co-Arranger and ~~other information required~~ the Administrative Agent shall be reasonably satisfied that (i) Pro Forma EBITDA (as determined by ~~bank regulatory authorities under applicable “know your customer”~~ the Administrative Agent) of the Borrower and ~~anti-money laundering rules~~ its Subsidiaries for the four consecutive quarterly periods ending with the last calendar quarter immediately preceding the date hereof shall not be less than $75,000,000; and ~~regulations, including~~ (ii) the ~~Patriot Act~~Leverage Ratio (as determined by the Administrative Agent) of the Borrower and its Subsidiaries (after giving effect to the Acquisition on a pro forma basis as if the Acquisition had been consummated on the first day of the most recently completed four consecutive Fiscal Quarters) shall not exceed 2.5:1.0 as of the date hereof.

Appears in 1 contract

Sources: Credit Agreement (Esterline Technologies Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ ----------------------------------------------------------------- obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) A copy of an order of the Bankruptcy Court in substantially the form of Exhibit G-1 (the "Interim Order") and the Interim Order shall be in full force and effect and shall not have been vacated, reversed, modified or amended and there shall be no stay of the performance of any obligation of either Borrower or any of the Loan Parties (the parties hereto acknowledge that the foregoing shall not preclude the entry of any order of the Bankruptcy Court approving or authorizing an amendment or modification of this Agreement or any other Loan Document or the Interim Order permitted by Section 9.01 which amendment or modification shall be acceptable to the Lenders whose consent is required to approve such amendment or modification under Section 9.01). (ii) The Notes payable to the order of the Lenders to the extent requested ~~pursuant to~~ in accordance with Section 2.16. (iiiii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment~~ if and to the extent required by the Administrative Agent, executed copies of proper financing statements, ~~duly~~ to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before~~ Intercompany Notes duly executed by the ~~date~~ Borrower and each Subsidiary that is to receive proceeds of the Initial Extension of ~~Credit, listing the financing statements referred~~ Credit pursuant to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statementsSection 5.02(b)(ii), (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under 50 the Security Agreement subject to the liens created and permitted by the Interim Order and the Final Order, as the case may be, has been taken (including, without limitation, receipt of duly executed payoff ~~letters, UCC-3 termination statements and landlords’ and bailees’ waiver~~ letters and consent agreements).; and (~~iii~~E) ~~A guaranty in substantially~~ a certificate of a Responsible Officer of each of the ~~form~~ Loan Parties dated the Effective Date as to the absence (to the best of ~~Exhibit E hereto (together with each~~ his knowledge and belief) of any Liens against the assets and properties of, or financing statements filed by, such Loan Party, other ~~guaranty~~ than Permitted Liens and ~~guaranty supplement delivered pursuant to Section 5.01(j~~Liens existing on the Effective Date and described on Schedule 5.02(a)~~, in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor~~. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction 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 Transaction 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 ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate other than those described on Schedule 3.01(a)(v) and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixviii) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements of Parent Guarantor and its Subsidiaries for the fiscal period ending dated December 31, ~~2010~~2000, which statements shall be unqualified except as to such qualifications contained therein which the Lender Parties hereby acknowledge are acceptable, interim unaudited monthly financial statements ~~dated the end~~ of ~~the most recent~~ Parent Guarantor and its Subsidiaries for each fiscal ~~quarter for which financial statements are available~~month ending thereafter through April 30, 2001, pro forma ~~consolidated~~ financial statements as to the Borrower ~~and its Subsidiaries~~ and forecasts prepared by management of the Borrower, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on ~~an annual~~ a monthly basis for ~~each~~ the first year following the ~~Effective Date until~~ day of the ~~Termination Date~~Initial Extension of Credit. (ix) The Bankruptcy Court shall have authorized the use by the Borrower and the Guarantors of proceeds of Pre-Petition Collateral that constitutes "cash collateral" (within the meaning of the Bankruptcy Code) in respect of the liens granted pursuant to the Pre- Petition Credit Agreement. (x) A letter, in form and substance satisfactory to the Administrative Agent, from the Borrower to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.L.P., its independent certified public accountants, advising such accountants that the Agents and the Lender Parties have been authorized to exercise all rights of the Borrower to require such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to the Borrower and its Subsidiaries and directing such accountants to comply with any reasonable request of any Agent or any Lender Party for such information. (xi) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is of a level and amount customary in the Borrower's businesses or otherwise determined in the exercise of their reasonable business judgment by the management of the Borrower to be sufficient and appropriate in an amount and type for the businesses. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) ~~Favorable opinions~~ A favorable opinion of McGuireWoods, L.L.P., counsel for the Loan Parties, in substantially the form of Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xiv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇~~, LLP and~~ ▇▇~~▇▇▇▇▇▇▇ Traurig LLP~~ , special bankruptcy counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2 hereto~~ Exhibit F-2 thereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~b) ~~Evidence~~ All proceedings taken in connection with the execution of this Agreement, the making of the Advances, the issuance of any Letter of Credit, the execution and delivery of all other Loan Documents and all documents and papers thereof shall be reasonably satisfactory to the Administrative Agent and ~~the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b)~~ its counsel. The Administrative Agent and its counsel shall have received copies of such documents and papers as the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent or its counsel may reasonably request in connection therewith, all in form and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions substance satisfactory to the Administrative Agent and ~~the Joint Lead Arrangers~~its counsel. (ec) The First Day Orders shall be reasonably satisfactory in form and substance to the Administrative Agent, including, without limitation, an order providing for the continuation of the pre-Filing Date cash management system of the Borrower and Guarantors with Citibank, N.A., as modified in accordance with the terms of this Agreement. (d) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2000 (other than the commencement of the Cases). (fe) ~~There~~ Except as may be stayed in connection with the commencement of the Cases, there shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") and the commencement of the Cases or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All ~~governmental~~ Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them other than the entry by the Bankruptcy Court of the Interim Order or the Final Order, as applicable. (g) The Lender Parties shall have completed a due diligence investigation of the Loan Parties and their respective Subsidiaries (including, without limitation, a review of Holding's and the Borrower's capital structure, all material contracts, debt instruments and charter and by-laws) in scope, and with results, satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that the Information was or has become misleading, incorrect or incomplete in any material respect. Without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have reasonably requested. The Lender Parties acknowledge the due diligence investigation described in this Section 3.01(g) has been completed to their satisfaction. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The ~~Refinancing~~ Loan Parties shall have ~~been consummated or~~ granted the Administrative Agent access to and the right to inspect all reports, audits and other internal information of the Borrower and the Guarantors relating to environmental matters and any third party verification of compliance with environmental laws and regulations requested by the Administrative Agent, and the Lenders shall be ~~consummated or concurrently consummated~~ satisfied that the Borrower and its subsidiaries are in compliance in all material respects with all applicable environmental laws and regulations and be satisfied with the ~~Effective Date~~costs of maintaining such compliance, ~~all advances and other amounts owing under~~ which access the ~~Existing Credit Agreement shall have~~ Administrative Agent acknowledges has been ~~repaid~~ granted to its satisfaction in ~~full,~~ connection with the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Administrative Agent~~), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated~~'s due diligence review. (j) The ~~Lenders~~ Administrative Agent shall be satisfied that the Borrower and its subsidiaries will be able to meet their Post-Petition obligations under all applicable employee and retiree welfare plans as such obligations may be modified under the Bankruptcy Code or the Cases, that such employee benefit plans are, in all material respects, funded in accordance with the minimum statutory requirements, that no material "reportable event" (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan and that no termination of, or withdrawal from, any such employee benefit plan has occurred or is contemplated that could result in a material liability. The Administrative Agent shall have ~~received~~ reviewed and be satisfied with all ~~documentation~~ employee benefit plans of the Borrower and ~~other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act~~its Subsidiaries.

Appears in 1 contract

Sources: Senior Secured Priming Debtor in Possession Credit Agreement (Amf Bowling Worldwide Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note payable to the order of ~~the Lenders to the extent requested pursuant to Section 2.16~~each Lender. (ii) A security agreement in substantially the form of Exhibit D F hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan ~~Party~~Party that owns Borrowing Base Assets, together with: (A~~) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement, (E) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit C to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties; (F) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset, (G) a subordination agreement, in form and substance satisfactory to the Collateral Agent, ~~on behalf~~ executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset, (H) franchisor comfort letters, substantially in the ~~Lender Parties, as additional insured~~ form of Exhibit K hereto or otherwise in form and ~~loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is~~ substance satisfactory to the ~~Administrative Agents~~ Collateral Agent, executed and delivered by the ~~Joint Lead Arrangers~~franchisors of each Hotel Asset comprising a Borrowing Base Asset, and (FI) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable 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, ~~UCC-3~~ UCC termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit E G hereto (together with each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time~~ the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit H hereto (together with each other assignment of leases and rents delivered pursuant to ~~time~~Section 5.01(j), in each case as amended, the “~~Subsidiary Guaranty~~Assignments of Leases”)) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Collateral Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities, (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amount acceptable to the Collateral Agent, issued, coinsured and reinsured by title insurers acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Collateral Agent may deem necessary or desirable, and with respect to any such property located in a State in which a zoning endorsement is not available, a zoning compliance letter from the applicable municipality in a form reasonably acceptable to the Collateral Agent, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Collateral Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (▇) engineering, soils, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Collateral Agent, (E) estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of any leased Borrowing Base Assets listed on Schedule 4.01(r) hereto, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledge by the owner of the affected Borrowing Base Asset, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent, (F) evidence of the insurance required by the terms of the Mortgages, (G) an Appraisal of each Borrowing Base Asset described in the Mortgages, and (H) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or desirable and evidence that all other action that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors, general partner or managing member, as applicable, of ~~the members~~ each Loan Party and of each general partner or ~~managers~~ managing member (if any) of each Loan Party approving the ~~Transaction~~ transactions contemplated by the Loan Documents 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 ~~Transaction~~ transactions under the Loan Documents 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 (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s ~~office,~~ office and (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed would not be reasonably ~~requested by the Joint Lead Arrangers~~likely to have a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated~~ for the year ending December 31, ~~2010~~2003, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma consolidated~~ in the event the Lender Parties’ due diligence review reveals material changes since such financial ~~statements~~ statements, as ~~to the Borrower and its Subsidiaries and forecasts prepared by management~~ of a later date within 45 days of the ~~Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers,~~ day of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit). (~~xiii~~x) ~~Favorable opinions~~ Evidence of insurance naming the Administrative Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties. (xi) An opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent or may reasonably request. (xii) An opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel for the ~~Joint Lead Arrangers~~ Loan Parties, in substantially the form of Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xiii) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel for the Loan Parties, in substantially the form of Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xiv) ~~Evidence satisfactory~~ Opinions of local counsel for the Loan Parties in the states in which the Borrowing Base Assets are located, in substantially the form of Exhibit E-4 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (bxv) ~~The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization~~ An opinion of ~~each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Shearman & Sterling LLP, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and counsel for the Administrative Agent, in ~~each case that restrains, prevents or imposes materially adverse conditions upon~~ form and substance satisfactory to the ~~Transaction~~Administrative Agent. (hxvi) ~~The Borrower shall have paid all accrued fees~~ An intercreditor agreement in substantially the form of Exhibit J hereto (the ~~Joint Lead Arrangers~~“Intercreditor Agreement”), duly executed and delivered by the Administrative Agent, the ~~Agents~~ Collateral Agent, the administrative agent and collateral agent under the Term Loan Documents and the ~~Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties)~~Borrower. (ixvii) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.A Notic

Appears in 1 contract

Sources: Revolving Credit Agreement (Sunstone Hotel Investors, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint~~ Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested pursuant to Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,, Back to Contents (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (~~B) above~~ B)above and all other effective financing statements filed in all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent~~Agreement, ~~on behalf of the Lender Parties, as additional insured and loss payee~~ together with ~~such responsible and reputable~~ an insurance ~~companies or associations, and in such amounts and covering such risks, as is~~ broker’s letter satisfactory to the Administrative ~~Agents~~ Agent as to the customary nature and adequacy of the ~~Joint Lead Arrangers~~Borrower’s insurance, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction 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 ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization.~~incorporation. Back to Contents (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the ~~Joint Lead Arrangers~~Administrative Agent, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ 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 and correct copy of the bylaws ~~or operating agreement, as applicable,~~ 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the ~~Joint~~ Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer~~, if any, or other Responsible Officer if none~~. (xi) Audited annual financial statements dated December 31, ~~2010~~2004, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the ~~Joint~~ Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the ~~Effective~~ Closing Date until the Termination Date. (xii) Evidence of insurance in respect of the Collateral naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agent and the Lead Arrangers. Back to Contents (xiii) Certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries as the Lead Arrangers or the Administrative Agent shall request. (xiv) A certificate of a Financial Officer of the Borrower, in form and substance satisfactory to the Lead Arrangers and the Administrative Agent, demonstrating that the aggregate of (i) 85% of the book value of the accounts receivable, and (ii) 60% of the book value of the inventory, in each case as reflected in the Borrower’s financial statements for the fiscal quarter ended June 30, 2005, exceeds the sum of aggregate principal amount of the Commitments plus the aggregate amount of obligations outstanding under Secured Cash Management Agreements plus the aggregate Agreement Value of all Secured Hedge Agreements, in each case as of the date hereof. (xv) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries as the Lead Arrangers or the Administrative Agent shall request. (xvi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xvii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP~~ LLC and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the ~~Joint~~ Lead Arrangers may reasonably request. (~~xiv~~xviii) Evidence satisfactory to the Administrative Agent and the ~~Joint~~ Lead Arrangers that ~~a nationally recognized Process Agent~~ CT Corporation System shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the ~~Joint~~ Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the ~~Joint~~ Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the ~~Joint~~ Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2004. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.. Back to Contents (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint~~ Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the ~~Joint~~ Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the ~~Joint~~ Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the ~~Joint~~ Lead Arrangers (including the accrued fees and expenses of counsel to the ~~Joint~~ Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the ~~Effective Date~~Initial Extension of Credit, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the ~~Paying Agent~~ Lead Arrangers (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the ~~Paying Agent~~Lead Arrangers), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Steel Dynamics Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Article II of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which such conditions precedent have been satisfied or waived): (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Initial Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above and ~~all~~ any other ~~effective financing statements filed in all~~ jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem ~~necessary or desirable~~ appropriate 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 completion of~~ that all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder shall have been completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, (EF) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (FG) ~~evidence that all other action that~~ the ~~Joint Lead Arrangers may deem necessary or desirable~~ Deposit Account Control Agreements referred to 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”)Agreement, duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents of such Loan Party since the date of the Secretary of State’s certificate Pledged Account Bank referred to in ~~Section 3.01(a)(v),~~ the Security Agreement, (BH) ~~a true and correct copy of~~ the ~~bylaws or operating agreement, as applicable, of such Loan Party as in effect on the date on which the resolutions~~ Securities Account Control Agreement referred to in ~~Section 3.01(a)(iv) were adopted and on~~ the date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related DocumentsSecurity Agreement, duly executed by the ~~parties thereto and in form and substance satisfactory to~~ Collateral Agent, the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each applicable Loan Party and ~~each of its Subsidiaries~~ the ~~Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~applicable securities intermediary, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.and

Appears in 1 contract

Sources: First Lien Credit Agreement (Ntelos Holdings Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness~~ obligations of ~~this Amended and Restated Credit Agreement, and~~ the ~~obligation of each Lender~~ Lenders to make ~~an Advance or~~ Advances and of ~~any~~ the Issuing Bank to issue ~~a Letter of Credit on the occasion of the Initial Extension~~ Letters of Credit hereunder ~~is subject to~~ shall not become effective until the ~~satisfaction~~ first date (the “Effective Date”) on which each of the following conditions ~~precedent before~~ shall be satisfied (or ~~concurrently~~ waived in accordance with ~~such effectiveness or Initial Extension of Credit:~~Section 9.01): (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified~~), in form and substance satisfactory to the Joint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:~~): (i) ~~The Notes payable to the order~~ Executed counterparts of ~~the Lenders to the extent requested pursuant to Section 2.16~~this Agreement. (ii) A Note executed by the Borrower in favor of each Lender requesting a Note at least one Business Day prior to the Effective Date. (iii) A security agreement in substantially the form of Exhibit D hereto (~~together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Initial Pledged ~~Shares~~ 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) ~~acknowledgment copies of~~ (1) proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary ~~or desirable~~ 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, in each case completed in a manner in conformance with the UCC and (2) a Memorandum of Security Agreement in the form of Exhibit D to the Security Agreement in a form appropriate for filing with STB, (C) completed requests for information, dated on or before the ~~date of the Initial Extension of Credit,~~ Effective Date listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements,, and (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the first priority liens and an intellectual property security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty agreement in substantially the form of Exhibit ~~E hereto (together with each other guaranty and guaranty supplement delivered pursuant~~ B to ~~Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”)~~Security Agreement, duly executed by each ~~Subsidiary Guarantor~~Loan Party. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction 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 Transaction 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 (or other similar official) of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate (to the extent the Secretary of State in the applicable jurisdictions typically provides such a certification) and (C3) such Loan Party is duly incorporated ~~or organized~~ and in good standing (to the extent such concept exists in the applicable jurisdiction) or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) (i) A ~~copy of a~~ certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate or Assistant Secretary of each Loan Party, ~~signed~~ countersigned on behalf of such Loan Party by ~~a Responsible Officer~~another officer of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ 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 and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date ~~on which~~ of the ~~resolutions referred~~ Initial Extension of Credit and (C) the good standing of each Loan Party (to the extent such concept exists in ~~Section 3.01(a)(iv~~the applicable jurisdiction) ~~were adopted~~ (with the applicable good standing certificates attached thereto), and on (ii) a certificate of the President or a Vice President of the Borrower, dated the date of the ~~Effective Date~~Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (CA) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organizationtruth, ~~and the absence of any proceeding for the dissolution or liquidation of such Loan Party~~in all material respects, ~~(D) the truth~~ of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (EB) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixviii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) CertificatesA certificate, in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole,~~ Parties before and after giving effect to the Transaction, from ~~its Chief Financial Officer, if any, or other Responsible Officer if none~~the chief financial officer of the Parent. (xiix) ~~Audited annual~~ Delivery of the financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower described in Sections 4.01(g) and ~~its Subsidiaries~~ (h) and forecasts prepared by management of the ~~Borrower~~Parent, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements of the Measured Entities on a quarterly basis for each fiscal quarter ending during the first six months following the Effective Date and on an annual basis for each year ~~following the Effective Date~~ thereafter until the ~~Termination Date~~year ending December 31, 2013. (~~xii~~x) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xi) ~~Favorable opinions~~ A favorable opinion of ▇White & Case LLP, counsel for the Loan Parties, in substantially the form of Exhibit G-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xii) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ special STB counsel ~~for the Loan Parties,~~ in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and~~ Exhibit G-2 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xiii) ~~Evidence satisfactory~~ To the extent not covered by clause (xi) above, a favorable opinion of local counsel from each jurisdiction in which any Loan Party is organized, in substantially the form of Exhibit G-3 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan DocumentsSince December 31, ~~including the terms and conditions of the charter~~2010, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization~~there has been no Material Adverse Change. (c) ~~All Equity Interests~~ The Lender Parties shall have received evidence that all recordings, filings or other actions necessary or, in the reasonable opinion of the ~~Guarantors shall be owned by~~ Administrative Agent, desirable, to ensure that the ~~Borrower or one or more of~~ Administrative Agent has a valid and perfected first priority lien and security interest in the ~~Borrower’s Subsidiaries, in each case free and clear of any Lien~~ Collateral (other than ~~Liens created under~~ Collateral with respect to which a perfected first priority lien and security interest is not required until after the ~~Loan Documents~~Effective Date pursuant to the terms hereof), have been completed. (d) ~~The Administrative Agent and the Joint Lead Arrangers~~ Certificates of insurance shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory delivered to the Administrative Agent evidencing the existence of insurance to be maintained by Parent and its Restricted Subsidiaries pursuant to Section 5.01(c) and, if applicable, the ~~Joint Lead Arrangers~~Collateral Agent shall be designated as an additional insured and loss payee as its interest may appear thereunder, or solely as the additional insured, as the case may be, thereunder. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued and duly invoiced fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties~~Administrative Agent). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Kansas City Southern)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an ~~Advance~~ Advance, of the Existing Issuing Bank to continue the Existing Letters of Credit under this Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of each Lender that has requested the ~~Lenders to the extent requested pursuant to Section 2.16~~same. (ii) ~~A security agreement in substantially the form of Exhibit D hereto (together~~ Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each applicable Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsand, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date~~ case of ~~the Initial Extension of Credit~~UCC searches, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed in ~~all~~ the jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Part A of Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset, (v) As to each Borrowing Base Asset: (A) the most recently prepared land survey of such Borrowing Base Asset, prepared by a duly licensed and registered land surveyor, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and adversely affect the value or operation of such property or are reasonably acceptable to the Administrative Agent, (B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset, (C) an original of the Existing Qualified Mortgage and the related Existing Qualified Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01, (D) ~~evidence~~ a copy of an ALTA Owner’s Policy of Title Insurance of the ~~completion~~ Borrower or a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of the fee titleholder thereto and all ~~other recordings and filings~~ matters of ~~or with respect to~~ record as of the ~~Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby,~~date of such policy, and (E) ~~evidence~~ (1) a “Phase I” environmental assessment of ~~the insurance required~~ such Borrowing Base Asset, which report (i) has been prepared by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory an environmental engineering firm reasonably acceptable to the Administrative ~~Agents~~ Agent and (ii) is otherwise in form and substance reasonably acceptable to the ~~Joint Lead Arrangers~~Administrative Agent and (2) any other environmental assessments or similar reports relating to such Borrowing Base Asset, ~~and~~including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Borrowing Base Asset. For the avoidance of doubt, the parties hereby acknowledge that the items required to be delivered to the Administrative Agent pursuant to this Section 3.01(a)(v) shall not be required for the Borrowing Base Assets listed on Part A of Schedule II (not indicated with an asterisk) which qualify as Borrowing Base Assets (under and as defined in the Existing Agreementloan documentation for the Other Facilities) immediately prior to the Effective Date. (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (ivvi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vvii) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (viviii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~ix) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan Party and its general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and its general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan Party and its general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan ~~Party~~Party and its general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~x) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, and of the general partner or managing member of such Loan Party, as applicable, authorized to sign each Loan Document to which it such Loan Party is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixxi) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer,~~ historical operating statements (if any), ~~or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated~~ for the year ending December 31, ~~2010~~2012, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma~~ in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated ~~financial statements as~~ operations. (xii) Evidence that all insurance required to be maintained pursuant to the ~~Borrower~~ Loan Documents has been obtained and ~~its Subsidiaries~~ is in effect. 80 (xiii) An opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, with respect to such matters (and ~~forecasts prepared by management~~ in substantially the form) as any Lender Party through the Administrative Agent may reasonably request. (xiv) An opinion of counsel for the Loan Parties reasonably satisfactory to the Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf of the ~~Borrower~~Lender Parties may reasonably request. (xv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Agent. (~~xii~~xvi) ~~A Notice~~ One or more Notices of Borrowing or a Notice of Issuance, as applicable, relating to the Initial Extension of Credit, each dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (~~xiii~~xvii) ~~Favorable opinions~~ A certificate signed by a Responsible Officer of ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~the Borrower, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for~~ dated the ~~Loan Parties~~Closing Date, stating that after giving effect to the Initial Extension of Credit, the Parent Guarantor shall be in ~~substantially~~ compliance with the ~~forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent ~~and~~ showing the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~computations used in determining compliance with such covenants. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries ~~the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~that directly or indirectly owns a Borrowing Base Asset, including the terms and conditions of the ~~charter~~charter and bylaws, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and~~ operating agreement, partnership agreement or other governing document of each ~~agreement or instrument relating to such structure or capitalization~~of them. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before and after giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2012. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to ~~have~~ result in a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) heretotransactions contemplated thereby. (gf) All governmental and third party consents and approvals necessary in connection with the ~~Transaction~~ transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; , and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~transactions contemplated by the Loan Documents. (g) The Administrative Agent shall have received a breakage indemnity letter agreement executed by the Borrower and the Parent Guarantor in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the Agents~~ Administrative Agent and the Lender Parties and all ~~accrued~~ reasonable, out-of-pocket expenses of the ~~Joint Lead Arrangers~~ Administrative Agent (including the ~~accrued~~ reasonable fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties~~Administrative Agent). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Hersha Hospitality Trust)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The ~~Administrative Agent~~ Agents shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Agents (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent ~~requested~~ required by any Lender pursuant to Section ~~2.16~~2.16(a). (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Domestic Loan Party, together with: (A) certificates representing the Pledged Shares (other than the stock of the Borrower in Anam (the "ANAM SHARES")) referred to therein accompanied by undated stock powers or share transfer forms, as the case may be, executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Domestic Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent, on behalf~~ Agreement, (F) copies of the ~~Lender Parties~~Assigned Agreements referred to in the Security Agreement, ~~as additional insured and loss payee~~ together with a consent to such ~~responsible and reputable insurance companies or associations~~assignment, ~~and~~ in ~~such amounts and covering such risks, as is satisfactory~~ substantially the form of Exhibit B to the ~~Administrative Agents and~~ Security Agreement, duly executed by each party to such Assigned Agreements other than the ~~Joint Lead Arrangers~~Loan Parties, (G) the Pledged Account Letters referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent ~~agreements~~agreements and any local pledge agreement required under local law to obtain a validly perfected first priority security interest in the Collateral). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary~~ "SUBSIDIARY Guaranty”"), duly executed by each Subsidiary Guarantor. (iv) A guaranty in substantially the form of Exhibit F hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, the "INTERCOMPANY GUARANTY"), duly executed by each Intercompany Guarantor. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the transactions contemplated by the Transaction Documents and each ~~Loan~~ Transaction 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 ~~Transaction~~ Transactions and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State or other appropriate governmental official of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, ~~certifying~~ certifying, where applicable, (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ other constitutive document of such Loan Party and each amendment thereto on file in ~~such Secretary’s~~ that office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter or other constitutive document on file in ~~such Secretary’s~~ that office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificateincorporation. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (x) Certificates, in substantially the form of Exhibit FG hereto, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole, before and~~ after giving effect to the ~~Transaction~~Transactions and the other transactions contemplated by the Transaction Documents, from its ~~Chief Financial Officer~~chief financial officer; and a fairness opinion in form and substance satisfactory to the Agents, ~~if any, or other Responsible Officer if none~~from SSBI. (xi) ~~Audited annual financial statements dated December 31~~Such financial, ~~2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower~~ business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, forecasts prepared by management of the Borrower, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date, a pro forma consolidated balance sheet of the Borrower as of the most recently ended fiscal quarter of the Borrower, after giving effect to the Transactions, together with a certificate of the chief financial officer of the Borrower to the effect that such statement accurately presents the pro forma financial position of the Borrower and its subsidiaries in accordance with generally accepted accounting principles (and the Agents and the Lender Parties shall be reasonably satisfied that such balance sheets are not materially inconsistent with the forecasts previously provided to the Agents and the Lender Parties), and, not later than 10 Business Days before the Effective Date, (x) audited consolidated and, to the extent available, consolidating balance sheets and related statements of income, stockholders' equity and cash flows of each of the Borrower and of the Acquired Business for the three fiscal years ended before the Effective Date and (y) to the extent available, unaudited consolidated and consolidating balance sheets and related statements of income, stockholders' equity, and cash flows of each of the Borrower and of the Acquired Business for each completed fiscal quarter since the date of such audited financial statements, which audited and unaudited financial statements (i) shall be in form and scope reasonably satisfactory to the Agents and the Lender Parties and (ii) shall not be materially inconsistent with the financial statements previously provided to the Agents and the Lender Parties. (xii) ~~A Notice~~ An environmental assessment report, in form and substance satisfactory to the Agents, from an environmental consulting firm acceptable to the Agents, with respect to the domestic manufacturing facilities of ~~Borrowing or Notice of Issuance~~the Borrower and its Subsidiaries, as ~~applicable~~to any hazards, ~~relating~~ costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries may be subject, the amount and nature of which and the Borrower's plans with respect to which shall be acceptable to the ~~Initial Extension of Credit~~Agents, together with evidence, in form and substance satisfactory to the Agents, that all applicable Environmental Laws shall have been complied with. To the extent either the report or any other information that may become available to the Agents shall disclose any hazards, costs or liabilities under Environmental Laws or otherwise that the Agents deem material, the Agents shall be satisfied that such hazards, costs or liabilities were adequately reflected in the Borrower's financial reserves shown on the financial statements included in the Information Memorandum or that, to the extent not so reflected, the Borrower has made adequate provision for such hazards, costs or liabilities. (xiii) ~~Favorable opinions~~ Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance. (xiv) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries as the Agents shall request. (xv) A Borrowing Base Certificate. (xvi) A favorable opinion of Wils▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇~~Rosa▇▇, ~~LLP and~~ ▇▇~~▇▇▇▇▇▇▇ Traurig LLP counsel~~ unsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit H hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xvii) Favorable opinion of local counsel to the Lender Parties listed in Schedule V hereto in the jurisdictions listed in Schedule V hereto in form and substance satisfactory to the Lender Parties. (xviii) A favorable opinion of Shearman & Sterling, counsel for the Agents, in form and substance satisfactory to the Agents. (xix) Evidence satisfactory to the ~~Administrative Agent~~ Agents that the Acquired Business shall be owned by AT Korea free and ~~the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~clear of all Liens (other than Permitted Liens). (b) The ~~Administrative Agent~~ Agents and the ~~Joint Lead Arrangers~~ Lender Parties shall ~~be satisfied~~ have completed a due diligence investigation of the business, assets, operations, properties, condition (financial or otherwise), contingent liabilities, prospects and material agreements of the Borrower, Anam and their respective subsidiaries and the Acquired Business in scope, and with results, satisfactory to the ~~corporate~~ Lender Parties and ~~legal structure~~ nothing shall have come to the attention of the Agents and ~~capitalization~~ the Lender Parties during the course of ~~each Loan Party~~ such due diligence investigation to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Acquisition, the Borrower and ~~each of~~ its Subsidiaries would not have good and marketable title to all material assets of the ~~Equity Interests in which Subsidiaries are being pledged pursuant to~~ Acquired Business, free and clear of Liens other than Liens permitted under the Loan Documents, ~~including~~ and (iii) the ~~terms and conditions of~~ Acquisition or the ~~charter, bylaws and each class of~~ Anam Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to Investment will have a Material Adverse ~~Effect other than~~ Effect; without limiting the ~~matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation~~ generality of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangersforegoing, the Agents and the Lender Parties ~~and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing~~ shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.given

Appears in 1 contract

Sources: Credit Agreement (Amkor Technology Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender Party 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The~~ If requested by a Lender, Notes payable to the order of ~~the Lenders to the extent requested pursuant to Section 2.16~~such Lender. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by ~~each Loan Party~~the Borrower, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment~~ executed copies of proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name ~~any Loan Party~~ the Borrower as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may reasonably deem necessary ~~or desirable~~ 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A ~~guaranty~~ stock pledge (the "Stock Pledge") in substantially the form of Exhibit E ~~hereto (together with each other guaranty~~ and ~~guaranty supplement delivered pursuant to Section 5.01(j),~~ covering all of the issued shares in ~~each case as amended, supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”)~~Borrower, duly executed by ~~each Subsidiary Guarantor~~Holdings, together with: (A) certificates representing such shares accompanied by undated stock powers executed in blank, (B) executed copies of proper financing statements for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority security interests created under the Stock Pledge, covering such shares, and (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name Holdings as debtor, together with copies of such other financing statements. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each ~~Loan Party~~ of Holdings and the Borrower approving the Transaction 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 Transaction 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 (or equivalent governmental authority) of the jurisdiction of incorporation ~~or organization~~ of each ~~Loan Party~~of Holdings and the Borrower, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles~~ charter of ~~incorporation~~ Holdings or ~~articles of organization~~the Borrower, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in the office of such ~~Secretary’s office~~ Secretary of State (or such governmental authority) and (B) that (1) such amendments are the only amendments to ~~such Loan Party’s Organizational Documents~~ Holdings', or the Borrower's, as the case may be, charter on file in ~~such Secretary’s~~ its office, (2) ~~if applicable~~Holdings or the Borrower, ~~such Loan Party~~ as the case may be, has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) ~~such Loan Party~~ Holdings or the Borrower, as the case may be, is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State (or equivalent governmental authority) of each jurisdiction ~~reasonably requested by~~ in which each of Holdings and the ~~Joint Lead Arrangers~~Borrower is qualified or licensed as a foreign corporation, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that ~~a Loan Party~~ Holdings or the Borrower, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each ~~Loan Party~~of Holdings and the Borrower, signed on behalf of ~~such Loan Party~~ Holdings or the Borrower, as the case may be, by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or similar constitutive document) of ~~such Loan Party~~ Holdings or the Borrower, as the case may be, since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws of Holdings or ~~operating agreement~~the Borrower, as ~~applicable~~the case may be, ~~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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of ~~such Loan Party~~ Holdings or the Borrower, as the case may be, as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of ~~such Loan Party~~Holdings or the Borrower, as the case may be, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each ~~Loan Party~~ of Holdings and the Borrower certifying the names and true signatures of the officers of ~~such Loan Party~~ Holdings or the Borrower, as the case may be, 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. (ix) ~~Certified copies of each~~ A certified copy of the ~~Related Documents~~Tax Sharing Agreement and each Spin-off Document, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall reasonably request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each ~~Loan Party~~ of Holdings and the Borrower, in each case individually and together with its Subsidiaries, taken as a whole, immediately before and immediately after giving effect to the Transaction, from ~~its~~ their respective Chief Financial ~~Officer, if any, or other Responsible Officer if none~~Officers. (xi) ~~Audited annual financial statements dated December 31~~Such financial, ~~2010~~business and other information regarding Holdings and the Borrower and their respective Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Borrower operates, including, without limitation, business interruption insurance. (xiii) A Notice of Borrowing ~~or Notice of Issuance, as applicable,~~ relating to the Initial Extension of Credit. (~~xiii~~xiv) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan ~~Parties,~~ Parties and Holdings in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit H hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (~~b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ec) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~1999. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting ~~any Loan Party~~ Holdings or the Borrower or any of ~~its~~ their respective Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the ~~Transaction,~~ Transaction and there shall have been no material adverse change in the status, or financial effect on, ~~any Loan Party~~ Holdings, the Borrower or any of ~~its~~ their respective Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (ge) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in ~~effect~~effect (other than any such consents or approvals the absence of which, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect); all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Borrower or its Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (hf) The Lender Parties shall be satisfied with the terms and conditions of each Capital Raising. On the Closing Date, Holdings shall have received (i) at least $35,000,000 in cash proceeds from the Holdings Common Equity Contribution and (ii) at least an aggregate amount of $72,500,000 from the Holdings Capital Raising Events, and shall have contributed at least $59,000,000 of such proceeds to the capital of the Borrower by way of the Borrower Common Equity Contribution. The Borrower shall have used the proceeds of the Borrower Common Equity Contribution together with any excess cash on the balance sheet of the Borrower or shall use all such amounts simultaneously with the Initial Extension of Credit under the Loan Documents to finance, in part, the Transaction and related costs and expenses. Holdings shall have retained no more than $4,500,000 from the proceeds of the Capital Raisings for its own account and shall have contributed any excess proceeds, therefrom to the Borrower by way of a capital contribution. (g) The Borrower shall have paid or caused to be paid all accrued fees and expenses of the ~~Joint Lead Arrangers~~Administrative Agent, the ~~Agents~~ Lead Arranger and the Lender Parties ~~and all accrued expenses of the Joint Lead Arrangers~~ (including the accrued fees and reasonable expenses of counsel to the ~~Joint~~ Administrative Agent and the Lead ~~Arrangers and local counsel~~ Arranger). (h) All of the Equity Interests of each of the Borrower's Subsidiaries shall be owned by the Borrower or one or more of the Borrower's Subsidiaries (except to the ~~Lender Parties~~extent such Equity Interests are required by the laws of the jurisdiction of incorporation of such Subsidiary to be held by any third party solely for the purpose of complying with the laws for the incorporation or formation of such Subsidiary), in each case free and clear of any Lien, other than the Liens created under the Loan Documents; the Lenders shall have a valid and perfected first priority Lien and security interest in such Equity Interests (or 65% of such Equity Interests in a subsidiary that is a CFC) and in the other Collateral; all filings, recordations and searches necessary or desirable in connection with such Liens and security interests shall have been duly made; and all filing and recording fees and taxes shall have been duly paid. (i) The ~~Refinancing shall have been consummated or~~ Lender Parties shall be ~~consummated or concurrently consummated with~~ satisfied, on the Effective Date, ~~all advances and other amounts owing under~~ on a pro forma basis after giving effect to the ~~Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated~~ Transaction and the ~~letters~~ Advances borrowed on the date of ~~credit issued thereunder shall have been canceled or~~ the ~~reimbursement~~ Initial Extension of ~~draws thereunder provided for in a manner acceptable to~~ Credit and the ~~Paying Agent (it being understood that treating such letters of credit as Existing~~ Letters of Credit ~~hereunder~~ (if any) issued on the date of the Initial Extension of Credit, that the Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recent twelve month period is ~~acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated~~not greater than 3. ~~(j)~~ 7:1. The ~~Lenders~~ available cash as shown on the Borrower's pro forma balance sheet shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Actbe at least $45,000,000.

Appears in 1 contract

Sources: Credit Agreement (Key3media Group Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Article II of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which such conditions precedent have been satisfied): (a) The Administrative Agent and the Lead Arranger shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent~~ Lead Arranger (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended~~, supplemented or otherwise modified from time to time~~, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all~~ or any other ~~effective financing statements filed in all~~ relevant jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ 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 completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (EF) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (FG) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving ~~the Transaction and~~ each Loan Document to which it is or is to be a ~~party~~party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to ~~the Transaction and~~ each Loan Document to which it is or is to be a ~~party~~party and the transactions contemplated thereby. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan Party, signed on behalf of such Loan Party by ~~a Responsible Officer~~its Chief Financial Officer or its Co-Chief Executive Officer and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.,

Appears in 1 contract

Sources: Credit Agreement (Grubb & Ellis Co)

Appears in 1 contract

Sources: Credit Agreement (Trump Entertainment Resorts Holdings Lp)

Conditions Precedent to Initial Extension of Credit. ~~The effectiveness~~ Section 2.01 of this ~~Amended~~ Agreement shall become effective on and ~~Restated Credit Agreement,~~ as of the first date (the “Effective Date”) on which the following conditions have been satisfied or waived and the obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the ~~occasion of the Initial Extension of Credit hereunder~~ Effective Date is subject to the satisfaction or waiver of ~~the following~~ such conditions precedent before or concurrently with ~~such effectiveness or Initial Extension of Credit~~the Effective Date: (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan Party, together with: (A) ~~certificates~~ certificates, if any, representing the Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable 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 requests for information, dated on or before the ~~date of the Initial Extension of Credit~~Effective Date, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (E) evidence of the insurance required by the terms of the Security Agreement, (F) copies of the Trademark License Agreement, together with a consent to the assignment of such agreement in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such assignment other than the Loan Parties, (G) the Intellectual Property Security Agreement ~~naming~~ referred to in the Security Agreement (the “Intellectual Property Security Agreement”) in form appropriate for filing with the U.S. Copyright Office and/or U.S. Patent and Trademark Office, as applicable, duly executed by each Loan Party, (H) the Account Control Agreements referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, (I) the Securities Account Control Agreements referred to in the Security Agreement, duly executed by the Collateral Agent, ~~on behalf of~~ the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents applicable Loan Party and the ~~Joint Lead Arrangers~~applicable securities intermediary, and (FJ) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A ~~guaranty~~ mortgage in substantially the form of Exhibit E K hereto (the “Ship Mortgage”), duly executed and delivered by ▇▇▇▇▇ Indiana and the Collateral Agent, together with each other ~~guaranty~~ document required to be delivered in connection therewith. (iv) Deeds of trust, trust deeds, mortgages, leasehold mortgages and ~~guaranty supplement~~ leasehold deeds of trust in substantially the form of Exhibit G hereto (with such changes as may be reasonably satisfactory to the Administrative Agent and its counsel to account for local law matters) and otherwise in form and substance reasonably satisfactory to the Administrative Agent and covering the Properties (other than Excluded Properties) (together with Assignments of Leases and Rents and each other mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “~~Subsidiary Guaranty~~Mortgages”), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been either (x) duly recorded on or before the day of the Initial Extension of Credit or (y) duly executed, acknowledged and delivered in form suitable for filing or recording, in all filing or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amount reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens and Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the Initial Extension of Credit, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (D) estoppel and consent agreements, in form and substance reasonably satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of the leased real properties listed on Part B of Schedule 4.01(v) hereto, along with (x) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (y) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (z) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent, (E) evidence of the insurance required by the terms of the Mortgages, (F) certified copies of all management agreements, duly executed by each of the parties thereto, relating to each of the Properties, (G) duly executed management subordination agreements, each in a form satisfactory to the Administrative Agent, corresponding to each of the management agreements, and (H) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or desirable and evidence that all other actions that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (ivv) Certified copies of the resolutions of the board of directors (or ~~of the members or managers~~ similar governing body) of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate (or limited liability company) action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or ~~organization~~ formation, as applicable, of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated or ~~organized~~ formed, as applicable, and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or ~~organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers~~formation, ~~dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing~~ as ~~a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate~~applicable. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ other applicable formation documents) of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation (or formation) and good standing or valid existence of such Loan Party as a corporation or organized (or, in the case of a limited liability ~~company organized~~ company, formed) under the laws of the jurisdiction of its incorporation (or ~~organization,~~ formation) and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance reasonably satisfactory to the ~~Lender Parties~~Administrative Agent, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall reasonably request. (x) Certified copy of the Confirmation Order entered by the Bankruptcy Court approving the Plan of Reorganization. (xi) Certificates, in substantially the form of Exhibit FH hereto, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole,~~ before and after giving effect to the Transaction, from ~~its Chief Financial~~ the Borrower’s Responsible Officer~~, if any, or other Responsible Officer if none~~. (xixii) ~~Audited~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans and Multiemployer Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, ~~2010~~2004, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the Borrower ~~and its Subsidiaries~~ and forecasts prepared by management of the Borrower, in form and substance reasonably satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on ~~an annual~~ a quarterly basis for each year following the Effective Date until the ~~Termination~~ Term B Maturity Date. (~~xii~~xiii) Evidence reasonably satisfactory to the Lender Parties that the Borrower shall have ordered Phase I environmental assessment reports, to be generated in accordance with standards promulgated by the American Society for Testing and Materials for Phase I Assessments, from an environmental consulting firm reasonably acceptable to the Administrative Agent, as to any hazards, costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries may be subject. (xiv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xv) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, in substantially the form of Exhibit I-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xvi) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., local counsel for the Loan Parties in New Jersey, in substantially the form of Exhibit I-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xvii) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., gaming counsel for the Loan Parties in New Jersey, in substantially the form of Exhibit I-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xviii) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ LLP, local counsel for the Loan ~~Parties~~Parties in Indiana, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit I-4 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xix) ~~Evidence satisfactory to~~ The Intercreditor Agreement, duly executed by the ~~Administrative~~ Borrower, the General Partner, the Collateral Agent and U.S. Bank National Association, as second lien collateral agent for the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~holders of the New Notes. (b) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be reasonably satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties)Disclosure Statement. (i) The ~~Refinancing~~ United States Bankruptcy Court for the District of New Jersey shall have ~~been consummated or~~ entered the Confirmation Order confirming the Plan of Reorganization and approving the Loan Documents and the Related Documents, such order and Plan of Reorganization to be in form and substance reasonably satisfactory to the Administrative Agent, (ii) the Confirmation Order shall be ~~consummated or concurrently consummated with the Effective Date, all advances~~ in full force and ~~other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated~~ effect and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.not be subj

Appears in 1 contract

Sources: Credit Agreement (Trump Entertainment Resorts Holdings Lp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Article II of this Agreement shall become effective on and as of the first date (the "EFFECTIVE DATE") on which such conditions precedent have been satisfied): (a) The Administrative Agent and the Arranger shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (~~unless otherwise specified),~~ or such other day as reasonably acceptable to the Administrative Agent) in form and substance reasonably satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent ~~(unless otherwise specified)~~ and (except for the Notes) in sufficient copies for each Lender Party: (i) a counterpart to this agreement duly executed by a Responsible Officer of each Loan Party. (ii) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (iiiii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j)) or otherwise, in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of proper~~ financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions ~~that the Joint Lead Arrangers may deem~~ necessary ~~or desirable~~ 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any of the Loan ~~Party~~ Parties as debtor, together with copies of such other financing statements, all as reasonably satisfactory to the Administrative Agent, (D) ~~evidence of~~ the ~~completion of all other recordings and filings of or with respect to the~~ Intellectual Property Security Agreement ~~that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required~~ duly executed by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangerseach Loan Party, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary ~~or desirable~~ 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,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (~~iii~~iv) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages in ~~substantially~~ form and substance reasonably satisfactory to the ~~form of Exhibit E hereto~~ Borrower and the Administrative Agent and its counsel and covering the Owned Real Properties (together with the Assignments of Leases and Rents referred to therein and each other ~~guaranty and guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"MORTGAGES"), duly executed by ~~each Subsidiary Guarantor~~the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been either (x) duly recorded on or before the day of the Initial Extension of Credit or (y) duly executed, acknowledged and delivered in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amount acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) American Land Title Association form surveys, dated no more than 30 days before the day of the Initial Extension of Credit, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (D) engineering, soils and other reports as to the properties described in the Mortgages as may be requested by the Administrative Agent, in form and substance and from professional firms acceptable to the Administrative Agent, (E) such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as the Administrative Agent may deem necessary or desirable, (F) evidence of the insurance required by the terms of the Mortgages, (G) Favorable opinions of local counsel for the Loan Parties (i) in states in which the Owned Real Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings, in form and substance satisfactory to the Administrative Agent and the Borrower and (ii) in states in which the Loan Parties party to the Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of the Mortgages, in form and substance satisfactory to the Administrative Agent and the Borrower, and (H) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (ivv) Certified copies of (A) the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party as in full force and effect on, and without amendment or modification as of, the date of the Initial Extension of Credit, and of all documents evidencing other necessary corporate action, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party, ~~and of~~ (B) all documents evidencing (1) any governmental approvals and consents with respect to the Loan Documents and the Second Lien Term Loan Facility and the transactions contemplated therein and (2) any material governmental approvals and consents with respect to the Acquisition and the Purchase Agreement and (C) other ~~necessary corporate action and governmental and other~~ material third party approvals and consents, if any, with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvi) A copy of the charter of each Loan Party certified by, and a copy of the good standing certificate in respect of such Loan Party issued by, the Secretary of State of the jurisdiction of ~~incorporation~~ incorporation, formation or organization of each Loan Party, dated reasonably near the ~~Effective Date, certifying (A) as to a true and correct copy~~ date of the ~~charter, articles~~ Initial Extension of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificateCredit. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws~~ bylaws, limited partnership agreement or ~~operating~~ limited liability company agreement, as applicable, of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, formation or organization and good standing or valid existence of such Loan Party as a ~~corporation~~ corporation, limited partnership or limited liability company incorporated, formed or organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, formation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the ~~truth~~ accuracy in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related ~~Documents~~Documents (including all schedules and exhibits thereto), duly executed by the parties thereto (it being acknowledged that the Purchase Agreement executed and ~~in form and substance~~ delivered on September 15, 2005 is satisfactory to the ~~Lender Parties~~Administrative Agent), together with all material agreements, instruments and other documents delivered in connection therewith as the ~~Administrative Agent or the Joint Lead Arrangers~~ Arranger shall reasonably request. (x) ~~Certificates,~~ A certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole~~Parties, before and after giving effect to the Transaction, from ~~its~~ the Borrower's Chief Financial Officer~~, if any, or other Responsible Officer if none~~. (xi) The Intercreditor Agreement, in substantially the form of Exhibit G hereto, duly executed by each party thereto and acknowledged by each Loan Party. (xii) Evidence of the Loan Parties' insurance coverage reasonably satisfactory to the Administrative Agent, demonstrating that the Loan Parties' existing insurance coverage remains in effect, together with endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, and a broker's letter reasonably satisfactory to the Administrative Agent, dated the Effective Date, to the effect that such coverage is customary and reasonable when compared to the insurance coverage purchased by similarly situated companies and that such coverage complies with the requirements of this Agreement and the Collateral Documents. (A) Audited ~~annual~~ consolidated financial statements ~~dated~~ of (1) the Borrower and its Subsidiaries for the twelve-month period ended December 31, ~~2010~~2002, ~~interim~~ the twelve-month period ended December 31, 2003, and the twelve-month period ended December 31, 2004 and (2) the Company and its Subsidiaries for the twelve-month period ended June 30, 2003, the twelve-month period ended June 30, 2004 and the twelve-month period ended June 30, 2005, in each case (x) audited by a nationally recognized independent accounting firm and (y) without any "going concern" or similar qualification, (B) unaudited consolidated financial statements ~~dated~~ of (1) the Borrower and its Subsidiaries, and (2) the Company and its Subsidiaries for any subsequent quarterly periods ended at least forty-five (45) days prior to the Effective Date (including, in any event, the restated consolidated balance sheet of the Company and its Subsidiaries as at December 31, 2005, and the related restated consolidated statement of income and restated consolidated statement of cash flows of the Company and its Subsidiaries for the six months then ended); (C) a management forecast (including a reasonably detailed statement of the underlying assumptions) of balance sheets, income statements and cash flow statements on a quarterly basis from the Effective Date through December 31, 2006 and on an annual basis for each year thereafter until all Facilities hereunder have terminated, in each case, for the Borrower and its Subsidiaries (after giving effect to the Transaction); and (D) a pro forma balance sheet of the Borrower and its Subsidiaries (after giving effect to the Transaction) as of the end of the most recent fiscal quarter for which financial statements ~~are available~~have been furnished pursuant to the preceding clause (A) or (B); none of which financial statements, information and forecasts furnished pursuant to any of the foregoing shall be materially inconsistent with any financial statements, information or forecasts previously provided to the Arranger. (xiv) a certificate from the chief financial officer of the Borrower certifying and setting forth the following calculations in reasonable detail: (A) after giving pro forma ~~consolidated financial statements as~~ effect to the Transaction and the Initial Extension of Credit, the pro forma EBITDA (calculated on a combined basis for the Borrower and its Subsidiaries and ~~forecasts prepared by management~~ the Company and its Subsidiaries for the twelve-month period ended as of ~~the Borrower~~December 31, ~~in form and substance~~ 2005, subject to such adjustments as are reasonably satisfactory to the Administrative ~~Agent~~ Agent) shall be at least $110.0 million; and (B) the ratio (as of the Effective Date, after giving effect to the Transaction and the ~~Joint Lead Arrangers,~~ Initial Extension of ~~balance sheets, income statements~~ Credit) of the Consolidated total Debt of the Borrower and ~~cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~its Subsidiaries to such pro forma EBITDA shall not exceed 4.75:1.00. (~~xii~~xv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xvi) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ~~LLP and~~ counsel for the Loan Parties, in substantially the form of Exhibit H hereto. (xvii) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ~~Traurig LLP~~ LLP, local counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit I hereto and as to such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request~~. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and ~~that~~ all ~~Surviving Debt shall be on terms~~ commitments, security interests and ~~conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers~~guaranties relating thereto terminated. (ec) ~~Before~~ All material Governmental Authorizations and all shareholder, board of director, and material third party consents and approvals necessary in connection with the Transaction and the continued operation of the business of the Loan Parties, after giving effect to the Transaction, ~~there~~ shall have ~~occurred no Material Adverse Change since December 31~~been obtained (without the imposition of any conditions that are not acceptable to the Administrative Agent) and shall remain in effect. No law or regulation shall be applicable in the judgment of the Administrative Agent, ~~2010.~~in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them (fd) There shall exist no action, suit, investigation, litigation or proceeding ~~affecting~~ involving any Loan Party or any of its Subsidiaries pending or threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the ~~“Disclosed Litigation”~~"DISCLOSED LITIGATION"), (ii) would reasonably be expected to restrain, prevent, or impose materially adverse conditions on the Transaction or any element thereof or (iiiii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the ~~status, or financial effect on, any Loan Party or any of its Subsidiaries,~~ status of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (he) The Borrower shall have paid all ~~accrued~~ fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all ~~accrued~~ expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and the Arranger and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.couns

Appears in 1 contract

Sources: Credit Agreement (Open Solutions Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note payable to the order of ~~the Lenders~~ each Lender that has requested a Note prior to the ~~extent requested pursuant to Section 2.16~~Effective Date. (ii) A security agreement in substantially the form of Exhibit D F hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENTS"), duly executed by each Loan ~~Party~~Party that owns Eligible Real Estate Assets, together with: (A~~) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~Agreements, covering the Collateral described in the Security ~~Agreement~~Agreements, (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security ~~Agreement~~ Agreements that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) ~~evidence~~ copies of the ~~insurance required by the terms of~~ Assigned Agreements referred to in the Security ~~Agreement naming~~ Agreements, together with a consent to such assignment, in substantially the ~~Collateral Agent, on behalf~~ form of ~~the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ Exhibit B to the ~~Administrative Agents and~~ Security Agreements, duly executed by each party to such Assigned Agreements other than the ~~Joint Lead Arrangers~~Loan Parties, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security ~~Agreement~~ Agreements has been taken (including, without limitation, receipt of duly executed payoff letters, ~~UCC-3~~ UCC termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages, in substantially the form of Exhibit E G hereto (with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Collateral Agent) and covering the properties comprising Eligible Real Estate Assets (together with the Assignments of Leases and Rents referred to therein and each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"MORTGAGES"), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amount acceptable to the Collateral Agent, issued, coinsured and reinsured by title insurers acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Collateral Agent may deem necessary or desirable, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 30 days before the day of the Initial Extension of Credit, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Collateral Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Collateral Agent, (D) engineering, soils, environmental and other reports as to the properties described in the Mortgages, in form and substance and from professional firms acceptable to the Collateral Agent, (E) the Assignments of Leases and Rents referred to in the Mortgages, duly executed by the appropriate Loan Party, (F) estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of the leased Eligible Real Property Assets listed on Schedule 4.01(q) hereto, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledge by the owner of the affected Real Property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent's reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent, (G) evidence of the insurance required by the terms of the Mortgages, (H) estoppel certificates executed by all tenants of the Eligible Real Estate Assets, (I) an Appraisal of each of the Real Property assets described in the Mortgages, and (J) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may deem necessary or desirable and evidence that all other action that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors, general partner or managing member, as applicable, of ~~the members~~ each Loan Party and of each general partner or ~~managers~~ managing member (if any) of each Loan Party approving the ~~Transaction~~ transactions contemplated by the Loan Documents 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 ~~Transaction~~ transactions under the Loan Documents 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 (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary~~’s office,~~ 's office and (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed would not be reasonably ~~requested by the Joint Lead Arrangers~~likely to have a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective Date~~date of the Initial Extension of Credit, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated~~ for the year ending December 31, ~~2010~~2002, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma consolidated~~ in the event the Lender Parties' due diligence review reveals material changes since such financial ~~statements~~ statements, as of a later date within 45 days of the day of the Initial Extension of Credit). (x) Evidence of insurance naming the Administrative Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties. (xi) An opinion of Latham and Watkins LLP, counsel for the Loan Parties, in ▇▇▇▇▇antia▇▇▇ ▇▇▇ form of Exhibit E hereto and as to such other matters as any Lender Party through the ~~Borrower and its Subsidiaries and forecasts prepared by management~~ Administrative Agent may reasonably request. (xii) An opinion of Shearman & Sterling LLP, counsel for the ~~Borrower~~Administrative Agent, in form and substance satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Agent. (~~xii~~xiii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and ~~each of~~ its ~~Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Subsidiaries, including the terms and conditions of the ~~charter~~charter and bylaws, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and~~ operating agreement, partnership agreement or other governing document of each ~~agreement or instrument relating to such structure or capitalization~~of them. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent~~ Lender Parties. (i) The Recapitalization and the ~~Joint Lead Arrangers~~IPO shall have been, substantially concurrently herewith, consummated, (ii) the Parent Guarantor shall have received net cash proceeds from the IPO in an amount not less than $600,000,000, and (iii) the common shares of the Parent Guarantor shall have been listed on the New York Stock Exchange. (e) Before and after giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2002. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the ~~“Disclosed Litigation”~~"DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the ~~Transaction~~transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the ~~Transaction~~ transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; , and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.t

Appears in 1 contract

Sources: Credit Agreement (Maguire Properties Inc)

Conditions Precedent to Initial Extension of Credit. ~~The effectiveness~~ Subject to the Closing Date Limitations, Section 2.01 of this ~~Amended~~ Agreement shall become effective on and ~~Restated Credit Agreement,~~ as of the first date (the “Effective Date”) on which the following conditions have been satisfied or waived and the obligation of each Second Lien 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~~ Effective Date is subject to the satisfaction or waiver of ~~the following~~ such conditions precedent before or substantially concurrently with ~~such effectiveness or Initial Extension of Credit~~the Effective Date: (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative ~~Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party~~Agent: (i) The Notes payable to the order of the Second Lien Lenders to the extent requested by the Second Lien Lenders pursuant to the terms of Section ~~2.16~~2.17. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan ~~Party~~Party party thereto, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of in all jurisdictions ~~that the Joint Lead Arrangers may deem~~ necessary ~~or desirable in order~~ to perfect ~~and protect~~ the first priority (subject only to Liens permitted by Section 5.02(a)) liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, (CB) completed requests for information, dated on or before the ~~date of the Initial Extension of Credit~~Effective Date, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements, (DC) evidence ~~of the completion of~~ that all other ~~recordings and filings of~~ action required by the Collateral Document or ~~with respect to~~ reasonably requested by the ~~Security Agreement that the Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent in order to perfect and protect the ~~Liens created thereby,~~ second priority (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory subject only to the ~~Administrative Agents and the Joint Lead Arrangers, and (F~~Liens permitted under Section 5.02(a)) ~~evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors (or ~~of the members or managers~~ similar governing body) of each Loan Party approving the Transaction 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 Transaction and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or ~~organization~~ formation, as applicable, of each Loan ~~Party, dated reasonably near the Effective Date,~~ Party certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated or ~~organized~~ formed, as applicable, and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or ~~organization~~formation, as applicable. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan Party, signed on behalf of such Loan Party by ~~a Responsible Officer~~its Secretary or an Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ other applicable formation documents) of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, and (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party. (vi) A certificate signed by the Responsible Officer of the Borrower, dated the date of the Initial Extension of Credit, certifying to the Other Second Lien Lenders as to (DA) the truth in all material respects of the ~~representations and warranties~~ Effective Date Representations contained in the Loan Documents as though made on and as of the date of the Initial Extension of ~~Credit~~ Credit, other than any such representations or warranties that, by their terms, refer to a specific date other than the Effective Date, in which case as of such specific date and (EB) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixviii) Certified copies of ~~each of~~ the ~~Related Documents~~Purchase Agreement, duly executed by the parties ~~thereto and in form and substance satisfactory to the Lender Parties~~thereto, together with all ~~agreements, instruments~~ exhibits and ~~other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request~~schedules thereto. (ix) The Intercreditor Agreement duly executed by each party thereto and acknowledged by each Loan Party. (x) ~~Certificates~~A certificate, in substantially the form of Exhibit FF hereto, in favor of the Other Second Lien Lenders, attesting to the Solvency of ~~each Loan Party individually~~ the Parent and ~~together with~~ its ~~Subsidiaries~~Subsidiaries on a Consolidated basis, ~~taken as a whole, before and~~ after giving effect to the Transaction, from its ~~Chief Financial~~ Responsible Officer~~, if any, or other Responsible Officer if none.~~ . (xi) ~~Audited annual~~ (A) audited financial statements ~~dated~~ of the Company and its Subsidiaries for the three year period prior to the Acquisition, unaudited Consolidated financial statements of the Company and its Subsidiaries for each subsequent fiscal quarter ended at least 45 days before the Initial Extension of Credit in each case, together with related statements of income, stockholders’ equity and cash flows; (B) the Consolidated pro forma balance sheet of the Company and its Subsidiaries as at December 31, ~~2010, interim financial statements dated the end~~ 2006; (C) Consolidated pro forma forecasts of operations of the ~~most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower~~ Company and its ~~Subsidiaries and forecasts~~ Subsidiaries, prepared by management of the ~~Borrower~~Parent for each year commencing with December 31, 2006, until December 31, 2012; (D) a written certification, in ~~form~~ favor of the Other Second Lien Lenders, from the chief financial officer of the Parent and ~~substance satisfactory~~ the Borrower that the pro forma Consolidated EBITDA of the Company and its subsidiaries for the twelve months ended June 30, 2007 was not less than $13,000,000; and (E) the pro forma financial statements delivered pursuant to clause (A) above and the forecasts heretofore delivered to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged delivered pursuant to clause (B) above were prepared in good faith on the ~~Loan Documents, including the terms and conditions~~ basis of the ~~charter~~assumptions stated therein, ~~bylaws and each class~~ which assumptions are fair in light of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and then existing conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that ~~treating~~ (1) such ~~letters of credit as Existing Letters of Credit hereunder is acceptable~~ forecasts are subject to uncertainties and contingencies which may be beyond any Loan Party’s control, (2) no assurances are given by any Loan Party that the ~~Paying Agent)~~results set forth in such forecasts or projections will be realized, and ~~all Liens~~ (3) the actual results may differ from the results set forth in such forecasts or projections and ~~guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated~~such differences may be material). (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Second Lien Term Loan Agreement (Berliner Communications Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness~~ obligations of ~~this Amended and Restated Credit Agreement, and~~ the ~~obligation of each Lender~~ Lenders to make ~~an Advance or~~ Advances and of ~~any~~ the Issuing Bank to issue ~~a Letter of Credit on the occasion of the Initial Extension~~ Letters of Credit hereunder ~~is subject to~~ became effective on the ~~satisfaction~~ Original Effective Date, when each of the following conditions ~~precedent before~~ were satisfied (or ~~concurrently~~ waived in accordance with ~~such effectiveness or Initial Extension of Credit:~~Section 9.01): (a) The Administrative Agent shall have received on or before the Original Effective Date the following, each dated such day (unless otherwise specified~~), in form and substance satisfactory to the Joint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:~~): (i) ~~The Notes payable to the order~~ Executed counterparts of the ~~Lenders to the extent requested pursuant to Section 2.16~~Original Credit Agreement. (ii) A Note executed by the Borrower in favor of each Lender (as defined in the Original Credit Agreement) requesting a Note at least one Business Day prior to the Original Effective Date. (iii) A security agreement in substantially the form of Exhibit D hereto (~~together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Initial Pledged ~~Shares~~ 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) ~~acknowledgment copies of~~ (1) proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary ~~or desirable~~ 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, in each case completed in a manner in conformance with the UCC and (2) a Memorandum of Security Agreement in the form of Exhibit D to the Security Agreement in a form appropriate for filing with STB, (C) completed requests for information, dated on or before the ~~date of the Initial Extension of Credit,~~ Original Effective Date listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements,, and (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the first priority liens and an intellectual property security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty agreement in substantially the form of Exhibit ~~E hereto (together with each other guaranty and guaranty supplement delivered pursuant~~ B to ~~Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”)~~Security Agreement, duly executed by each ~~Subsidiary Guarantor~~Loan Party. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction (as defined in the Original Credit Agreement) 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 Transaction (as defined in the Original Credit Agreement) 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 (or other similar official) of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate (to the extent the Secretary of State in the applicable jurisdictions typically provides such a certification) and (C3) such Loan Party is duly incorporated ~~or organized~~ and in good standing (to the extent such concept exists in the applicable jurisdiction) or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) (i) A ~~copy of a~~ certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate or Assistant Secretary of each Loan Party, ~~signed~~ countersigned on behalf of such Loan Party by ~~a Responsible Officer~~another officer of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ 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 and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date ~~on which~~ of the ~~resolutions referred~~ Initial Extension of Credit and (C) the good standing of each Loan Party (to the extent such concept exists in ~~Section 3.01(a)(iv~~the applicable jurisdiction) ~~were adopted~~ (with the applicable good standing certificates attached thereto), and on (ii) a certificate of the President or a Vice President of the Borrower, dated the date of the ~~Effective Date~~Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (CA) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organizationtruth, ~~and the absence of any proceeding for the dissolution or liquidation of such Loan Party~~in all material respects, ~~(D) the truth~~ of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (EB) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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 F hereto, attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction (as defined in the Original Credit Agreement), from the chief financial officer of the Parent. (ix) ~~Certified copies of each~~ Delivery of the ~~Related Documents~~financial statements described in Sections 4.01(g) and (h) and forecasts prepared by management of the Parent, ~~duly executed by the parties thereto and~~ in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements of the Measured Entities on a quarterly basis for each fiscal quarter ending during the first six months following the Original Effective Date and on an annual basis for each year ~~following the Effective Date~~ thereafter until the ~~Termination Date.~~year ending December 31, 2013. 80 Amended and Restated KCSR Credit Agreement (~~xii~~x) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xi) ~~Favorable opinions~~ A favorable opinion of ▇White & Case LLP, counsel for the Loan Parties, in substantially the form of Exhibit G-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xii) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ special STB counsel ~~for the Loan Parties,~~ in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and~~ Exhibit G-2 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xiii) ~~Evidence satisfactory~~ To the extent not covered by clause (xi) above, a favorable opinion of local counsel from each jurisdiction in which any Loan Party is organized, in substantially the form of Exhibit G-3 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan DocumentsSince December 31, ~~including the terms and conditions of the charter~~2010, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization~~there has been no Material Adverse Change. (c) ~~All Equity Interests~~ The Lender Parties shall have received evidence that all recordings, filings or other actions necessary or, in the reasonable opinion of the ~~Guarantors shall be owned by~~ Administrative Agent, desirable, to ensure that the ~~Borrower or one or more of~~ Administrative Agent has a valid and perfected first priority lien and security interest in the ~~Borrower’s Subsidiaries, in each case free and clear of any Lien~~ Collateral (other than ~~Liens created under~~ Collateral with respect to which a perfected first priority lien and security interest is not required until after the ~~Loan Documents~~Original Effective Date pursuant to the terms hereof), have been completed. (d) ~~The Administrative Agent and the Joint Lead Arrangers~~ Certificates of insurance shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory delivered to the Administrative Agent evidencing the existence of insurance to be maintained by the Parent and its Restricted Subsidiaries pursuant to Section 5.01(c) and, if applicable, the ~~Joint Lead Arrangers~~Collateral Agent shall be designated as an additional insured and loss payee as its interest may appear thereunder, or solely as the additional insured, as the case may be, thereunder. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued and duly invoiced fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties~~Administrative Agent). (if) The ~~Refinancing~~ Lender Parties shall have ~~been consummated~~ received satisfactory evidence of repayment of all “Term B Advances” and “Term C Advances” under and as defined in the “Existing Credit Agreement” (as defined in the Original Credit Agreement) and the discharge of all liens other than Permitted Liens or other Liens permitted pursuant to Section 5.02(a). (g) The Administrative Agent shall ~~be consummated or concurrently consummated with~~ have received, at least three days prior to the Original Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by ~~bank~~ regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. Patriot Act, that the Administrative Agent has requested reasonably in advance, but not less than ten days prior to the Original Effective Date.

Appears in 1 contract

Sources: Credit Agreement (Kansas City Southern)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note payable to the order of each Lender requesting the ~~Lenders to the extent requested pursuant to Section 2.16~~same. (ii) A security agreement in substantially the form of Exhibit D G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan ~~Party~~Party that owns Borrowing Base Assets, together with: (A~~) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent, on behalf~~ Agreement, (F) copies of the ~~Lender~~ Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties~~, as additional insured~~ , (G) certified copies of each management agreement and ~~loss payee with such responsible and reputable insurance companies or associations~~franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset, (H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset, (I) a subordination agreement, in ~~such amounts~~ form and ~~covering such risks, as is~~ substance satisfactory to the Administrative ~~Agents~~ Agent, executed and delivered by the ~~Joint Lead Arrangers~~manager of each Hotel Asset comprising a Borrowing Base Asset, (J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and (FK) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens and security interests~~ Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, ~~UCC-3~~ UCC termination ~~statements~~ statements, account control agreements and landlords’ and bailees’ waiver and consent agreements). (iii) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit E H hereto (together with each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time~~ the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to ~~time~~Section 5.01(j), in each case as amended, the “~~Subsidiary Guaranty~~Assignments of Leases”)) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by ~~each Subsidiary Guarantor. (iv) Certified copies of~~ the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each appropriate Loan Party, ~~dated reasonably near the Effective Date, certifying~~ together with: (A) ~~as to a true and correct copy~~ evidence that counterparts of the ~~charter~~Mortgages and Assignments of Leases have been duly executed, ~~articles of incorporation~~ acknowledged and delivered on or ~~articles of organization, as~~ before the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date day of the Initial Extension of Credit and ~~(E)~~ are in form suitable for filing or recording in all filing or recording offices that the ~~absence~~ Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any ~~event occurring~~ applicable documentary stamp, intangible and ~~continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.~~mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities, (~~viii~~B) ~~A certificate of a Responsible Officer of each Loan Party certifying~~ fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (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. (ix“Mortgage Policies”) ~~Certified copies of each of the Related Documents, duly executed by the parties thereto and~~ in form and ~~substance satisfactory~~ substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the ~~Lender Parties~~Administrative Agent, ~~together with~~ issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all ~~agreements~~defects (including, ~~instruments~~ but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other ~~documents delivered in connection therewith~~ affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or ~~the Joint Lead Arrangers shall request.~~desirable, (xC) ~~Certificates~~American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, ~~in substantially~~ dated no more than 45 days before the ~~form~~ date of ~~Exhibit F, attesting~~ their delivery to the ~~Solvency of each Loan Party individually and together with its Subsidiaries~~Collateral Agent, ~~taken as a whole, before and after giving effect~~ certified to the ~~Transaction~~Administrative Agent, ~~from its Chief Financial Officer~~the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, ~~if any~~showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other ~~Responsible Officer if none.~~defects, other than encroachments and other defects acceptable to the Administrative Agent, (xiD) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements zoning reports as to the ~~Borrower and its Subsidiaries and forecasts prepared by management of~~ properties described in the ~~Borrower~~Mortgages, in form and substance ~~satisfactory~~ reasonably acceptable to the Administrative Agent and ~~the Joint Lead Arrangers, of balance sheets, income statements~~ from Planning and ~~cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing~~ Zoning Resources Corp. or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may another professional firm reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to ~~the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and~~ the Administrative Agent, ~~in each case that restrains~~(E) engineering, ~~prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers~~soils, ~~the Agents~~ seismic, environmental and ~~the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel~~ other similar reports as to the ~~Joint Lead Arrangers~~ properties described in the Mortgages, in form and ~~local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances~~ substance and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner from professional firms reasonably acceptable to the ~~Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying~~ Administrative Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.,

Appears in 1 contract

Sources: Credit Agreement (Sunstone Hotel Investors, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing ~~Bank~~ Lender (in the event such Issuing Lender determines in its sole discretion to issue a Letter of Credit) to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction or waiver of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Sections 2.01 and 3.01 of this Agreement shall become effective on and as of the first date (the “Closing Date”) on which such conditions precedent have been satisfied): (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j~~6.01(j), in each case as amended~~, supplemented or otherwise modified from time to time~~, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Initial Pledged ~~Shares~~ 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) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or in its reasonable judgment desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, ~~listing the~~ and all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements, (D) ~~evidence of~~ the ~~completion of~~ Intellectual Property Security Agreement duly executed by each Loan Party, (E) all other recordings and filings of or with respect to the Security Agreement in form appropriate for filing that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangersthereunder, and (F) ~~evidence that all other action that~~ the ~~Joint Lead Arrangers may deem necessary or desirable~~ Deposit Account Control Agreements referred to in ~~order to perfect and protect the first priority liens and security interests created under~~ the Security ~~Agreement has been taken (including~~Agreement, ~~without limitation, receipt of~~ duly executed ~~payoff letters, UCC-3 termination statements~~ by the applicable Loan Parities and ~~landlords’ and bailees’ waiver and consent agreements)~~each Pledged Account Bank referred to in the Security Agreement. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor[Reserved.] (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors (or ~~of the members or managers~~ other analogous governing body) of each Loan Party approving the ~~Transaction~~ Refinancings, if applicable, 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 ~~Transaction~~ Refinancings, if applicable, 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 ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its Chief Executive Officer or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section ~~3.01(a)(v~~4.01(a)(v), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~4.01(a)(iv) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixviii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, A certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole,~~ before and after giving effect to the ~~Transaction~~Refinancings, from ~~its~~ the Chief Financial ~~Officer, if any, or other Responsible~~ Officer ~~if none~~of the Borrower. (xiix) ~~Audited annual~~ The Lender Parties shall have received the following regarding each Loan Party and its Subsidiaries: (A) audited Consolidated financial statements ~~dated~~ of the Parent and its Subsidiaries for the Fiscal Year ended December 31, ~~2010, interim~~ 2004 and unaudited Consolidated financial statements ~~dated the end~~ of the Parent and its Subsidiaries for the quarters ending after the Fiscal Year ended December 31, 2004 through the most ~~recent~~ recently completed fiscal quarter for which financial statements are available, ~~pro forma consolidated financial statements as~~ which in each case, (x) shall be satisfactory in form and substance to the ~~Borrower~~ Lead Arrangers and ~~its Subsidiaries and~~ (y) shall not be materially inconsistent with the information provided to the Joint Bookrunners prior to July 6, 2005; (B) forecasts prepared by management of the ~~Borrower~~Parent, each in form ~~and substance~~ reasonably satisfactory to the ~~Administrative Agent and the Joint~~ Lead Arrangers, of balance sheets, income statements and cash flow statements ~~on an annual basis~~ for each ~~year~~ fiscal quarter in 2005 and for each Fiscal Year through 2012, commencing with the first Fiscal Year following the ~~Effective~~ Closing Date; and (C) evidence satisfactory to the Lead Arrangers that the Total Leverage Ratio of the Parent and its Subsidiaries for the last Measurement Period of the Parent ended at least 30 days prior to the Closing Date ~~until~~ was not greater than 5.75:1.00 (determined on a pro forma basis after giving effect to the ~~Termination Date~~Refinancings). (~~xii~~x) Evidence of insurance with respect to the Loan Parties, to the extent required by Section 6.01(d) hereof, naming the Collateral Agent as additional insured and loss payee. (xi) A Notice of Borrowing ~~or Notice of Issuance, as applicable,~~ relating to the Initial Extension of Credit. (~~xiii~~xii) ~~Favorable opinions~~ A reasonably satisfactory opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, outside counsel for the Loan Parties, and ▇▇▇▇ ▇~~, LLP and~~ . ▇▇▇▇▇▇▇▇~~▇ Traurig LLP~~ , in-house counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively~~ Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereofhereto, respectively. (b) ~~The Administrative Agent~~ Simultaneously with the Initial Extension of Credit, the Borrower shall have effected the Refinancings on terms and conditions and pursuant to documentation reasonably satisfactory to the Joint Bookrunners. All liens and security interests in respect of the refinanced Debt shall have been released, or arrangements therefor shall have been made to the reasonable satisfaction of the Joint Bookrunners, and the Joint ~~Lead Arrangers~~ Bookrunners shall ~~be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant~~ have received a “pay-off” or similar letter or letters reasonably satisfactory to the ~~Loan Documents~~Joint Bookrunners with respect to the refinanced debt and, ~~including~~ if applicable, the ~~terms and conditions~~ release of ~~the charter, bylaws and each class of Equity Interest in each Loan Party and each~~ any Liens securing such ~~Subsidiary and of each agreement or instrument relating to such structure or capitalization~~debt. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the ~~Transaction~~Refinancings, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2004. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of such Loan Party or Subsidiary, threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that ~~(i)~~ could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule ~~4.01(f~~5.01(g) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto). (ge) All ~~governmental~~ material Governmental Authorizations and shareholder and third party consents and approvals necessary in connection with the ~~Transaction~~ Refinancings shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect~~; and no law~~ . (f) All loans made by the Lenders to the Borrower or ~~regulation~~ any of its Affiliates shall be ~~applicable~~ in compliance with the ~~judgment~~ regulations in respect of Margin Stock contained in Regulation U. (g) The Joint Bookrunners shall be satisfied that (i) the Parent and its Subsidiaries will be able to meet their material obligations under all employee and retiree welfare plans, (ii) the employee benefit plans of the ~~Joint Lead Arrangers~~ Parent and ~~the Administrative Agent~~its ERISA Affiliates are, in ~~each case~~ all material respects, funded in accordance with the minimum statutory requirements, (iii) no “reportable event” (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan and (iv) no termination of, or withdrawal from, any such employee benefit plan has occurred or is contemplated that ~~restrains, prevents or imposes materially adverse conditions upon the Transaction~~could reasonably be expected to result in material liability. (h) After giving effect to the Refinancings, the Parent and its Subsidiaries shall have outstanding no debt or preferred stock (or direct or indirect guarantee or other credit support in respect thereof) other than the Surviving Debt, the minority interest in Coastal Communications, Inc. and such other preferred stock as is acceptable to the Joint Bookrunners. (i) The Parent shall have complied with, or caused the Borrower to comply with, all of the terms of any fee letters with the Arrangers or RTFC to be complied with on or before the Closing Date. The Borrower shall have paid all ~~accrued~~ due and payable fees of the ~~Joint Lead Arrangers,~~ Lenders listed on the ~~Agents and~~ signature pages hereto on the ~~Lender Parties~~ Closing Date and all ~~accrued~~ due and payable expenses of the ~~Joint Lead Arrangers~~ Agents (including the ~~accrued~~ due and payable fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the ~~Lender Parties). (i~~Administrative Agent) ~~The Refinancing shall have been consummated or shall~~ required under such fee letters to be ~~consummated or concurrently consummated~~ paid in connection with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedLoan Documents. (j) The ~~Lenders~~ Borrower shall have ~~received all documentation~~ obtained debt ratings for the Facilities from ▇▇▇▇▇’▇ and ~~other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.~~S&P.

Appears in 1 contract

Sources: Credit Agreement (Madison River Capital LLC)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the ~~Lenders to the extent requested pursuant to Section 2.16~~Lenders. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to ~~Section~~ Sections 5.01(j) or 5.02(q), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Second Amended and Restated Subsidiary Guaranty”"), duly executed by each ~~Subsidiary~~ Guarantor. (iii) Ship Mortgages and supplements and amendments to existing Ship Mortgages, as the Collateral Agent may determine is necessary, for each Eligible Vessel and Barge listed on Schedule XI hereto, together with evidence that each such Ship Mortgage, together with any such supplement and amendment, has been duly recorded and is in full force and effect. (iv) Second Amended and Restated Assignments of Insurances for each Eligible Vessel and Barge listed on Schedule XI hereto. (v) Second Amended and Restated Assignments of Freights and Hires for each Eligible Vessel and Barge listed on Schedule XI hereto. (vi) Copy of the most recent appraisal of the value (as determined in accordance with the appraisal procedures set forth in the Ship Mortgages) required to be delivered under the terms of the Existing Credit Agreement of each Eligible Vessel and Barge listed on Schedule XI hereto by an appraiser acceptable to the Administrative Agent. (vii) In the absence of an acceptable appraisal report, a certificate of a Responsible Officer of the Borrower of the fair market value of the Eligible Physical Assets, in form and substance reasonably satisfactory to the Administrative Agent. (viii) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ Agreement and each other 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 ~~Transaction~~ Agreement and each Loan Document to which it is or is to be a party.. Second Amended and Restated ▇▇▇▇▇▇▇ Credit Agreement (vix) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that ~~(1)~~ such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, ~~(2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate~~ and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viix) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v),~~ 3.01(a)(ix) and (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(viii) were adopted and on the date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit~~, that constitutes a Default~~. (~~viii~~xi) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixxii) ~~Certified copies~~ Evidence of ~~each~~ insurance in respect of all Collateral naming the ~~Related Documents~~Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, ~~duly executed~~ and in such amounts and covering such risks as is required by the ~~parties thereto~~ Ship Mortgages and ~~in form and substance~~ as is satisfactory to the Lender Parties~~, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request~~. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xiixiii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit. (~~xiii~~xiv) ~~Favorable opinions~~ A favorable opinion of ▇▇~~▇▇▇▇▇ &~~ ▇▇▇▇▇▇▇, ~~LLP and~~ Poster & ▇▇▇▇▇▇~~▇▇▇ Traurig LLP~~ , counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit D hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xv) ~~Evidence satisfactory to~~ Security agreements, mortgages and other collateral documents in respect of Eligible Physical Assets as reasonably requested by the Collateral Agent, together with any filings, recordations and any other documents or instruments reasonably requested by the Administrative Agent ~~and~~ to evidence the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~Collateral Agent's first priority security interest in such Eligible Physical Assets. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued and unpaid fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties under the Existing Credit Agreement and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent) thereunder. (c) The Borrower shall have paid all accrued and ~~local~~ unpaid fees of the Agents and the Lender Parties in connection herewith which are due and payable on or prior to the Restatement Effective Date and all accrued expenses of the Agents (including the accrued fees and expenses of counsel to the ~~Lender Parties)~~Administrative Agent) hereunder. (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Crowley Maritime Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Article II of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which such conditions precedent have been satisfied or waived): (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each ~~Lender Party~~Lender: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section ~~2.16~~2.13. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j~~5.01(b), in each case as amended~~, supplemented or otherwise modified from time to time~~, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~first~~ second (subject only to the Lien created under the First Lien Collateral Documents) priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above and ~~all~~ any other ~~effective financing statements filed in all~~ jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem ~~necessary or desirable~~ appropriate 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 completion of~~ that all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder shall have been completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, (EF) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (FG) ~~evidence that all other action that~~ the ~~Joint Lead Arrangers may deem necessary or desirable~~ Deposit Account Control Agreements referred to 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”)Agreement, duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents of such Loan Party since the date of the Secretary of State’s certificate Pledged Account Bank referred to in ~~Section 3.01(a)(v),~~ the Security Agreement, (BH) ~~a true and correct copy of~~ the ~~bylaws or operating agreement, as applicable, of such Loan Party as in effect on the date on which the resolutions~~ Securities Account Control Agreement referred to in ~~Section 3.01(a)(iv) were adopted and on~~ the date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related DocumentsSecurity Agreement, duly executed by the ~~parties thereto and in form and substance satisfactory to~~ Collateral Agent, the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each applicable Loan Party and ~~each of its Subsidiaries~~ the ~~Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~applicable securities intermediary, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.and

Appears in 1 contract

Sources: Second Lien Credit Agreement (Ntelos Holdings Corp)

Conditions Precedent to Initial Extension of Credit. ~~The effectiveness~~ Section 2.01 of this ~~Amended~~ Agreement shall become effective on and ~~Restated Credit Agreement,~~ as of the first date (the "EFFECTIVE DATE") on which the following conditions have been satisfied and the obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the ~~occasion of the Initial Extension of Credit hereunder~~ Effective Date is subject to the satisfaction or waiver of ~~the following~~ such conditions precedent before or concurrently with ~~such effectiveness or Initial Extension of Credit~~the Effective Date: (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) ~~A security agreement~~ Supplements to the Security Agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”)hereto, duly executed by each ~~Loan Party, together with:~~Subsidiary Guarantor (to the extent not previously delivered to the Administrative Agent): (A) ~~certificates~~ certificates, if any, representing the Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,, ▇▇▇▇▇ Respiratory - Revolving Credit Agreement (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable 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 requests for information, dated on or before the ~~date of the Initial Extension of Credit~~Effective Date, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other Uniform Commercial Code recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangersthereunder, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken (~~including, without limitation,~~ including receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination statements), which request shall (i) have been made within reasonable time prior to the Closing Date and (ii) absent an Event of Default, shall be limited to filing of UCC-1 financing statements and ~~landlords’~~ delivery of (A) certificates representing Equity Interests, accompanied by undated stock powers for such certificates indorsed in blank and ~~bailees’ waiver~~ (B) instruments representing Pledged Debt and ~~consent agreements)~~note powers indorsed in blank, and otherwise on terms consistent with the Security Agreement. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors (or ~~of the members or managers~~ similar governing body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate (or limited liability company) action and governmental and other material third party approvals and consents, if any, with respect to the Transaction and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or ~~organization~~ formation, as applicable, of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated or ~~organized~~ formed, as applicable, and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or ~~organization~~formation, as applicable. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ other applicable ▇▇▇▇▇ Respiratory - Revolving Credit Agreement formation documents) of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation (or formation) and good standing or valid existence of such Loan Party as a corporation or organized (or, in the case of a limited liability ~~company organized~~ company, formed) under the laws of the jurisdiction of its incorporation (or ~~organization,~~ formation) and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vi) A certificate of ~~a Responsible Officer~~ the Secretary of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (xvii) Certificates, in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries~~Parties, taken as a ~~whole, before and after giving effect to~~ whole from the ~~Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none~~chief financial officer of the Borrower. (xiviii) ~~Audited annual~~ (A) unaudited Consolidated financial statements ~~dated December 31, 2010, interim financial statements dated the end~~ of ~~the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to~~ the Borrower and its Subsidiaries for the Fiscal Year ended June 30, 2006 in form and substance reasonably satisfactory to the Administrative Agent and the Initial Lenders and prepared in accordance with GAAP; (B) a pro forma quarterly budget for the Fiscal Year ending June 30, 2007 including an income statement, balance sheet and cash flow statement itemizing product lines and capital expenditures, (C) forecasts prepared by management of the Borrower, each in form ~~and substance~~ reasonably satisfactory to the Administrative Agent and the ~~Joint Lead Arrangers~~Initial Lenders, of balance sheets, income statements and cash flow statements ~~on an annual basis~~ for ~~each year~~ the four Fiscal Years following the ~~Effective Date until~~ Fiscal Year ending June 30, 2007; and (D) a written certification from the ~~Termination Date~~chief financial officer of the Borrower that (1) after giving effect to the Product Acquisition, the pro forma Consolidated EBITDA of the Borrower and its Subsidiaries for the twelve months ended June 30, 2006 was not less than $85,000,000, (2) the pro forma Leverage Ratio as of June 30, 2006 of the Borrower and its Subsidiaries (which pro forma ratio shall be calculated in a manner acceptable to the Administrative Agent, with such adjustments as are acceptable to the Administrative Agent) was not greater than 3.50 to 1.00 and (3) the pro forma unaudited financial statements delivered pursuant to clause (A) above and the budget and forecasts heretofore delivered to the Administrative Agent and delivered pursuant to clauses (B) and (C) above were prepared in good faith on the basis of the assumptions stated therein, which assumptions are fair in light of then existing conditions. (~~xii~~ix) The Administrative Agent shall be reasonably satisfied with the amount, types and conditions of all insurance maintained by the Borrower and the Subsidiaries and the Administrative Agent shall have received evidence of insurance naming the Collateral Agent as additional insured or loss payee, as the case may be, under all insurance policies to be maintained with respect to the properties of the Borrower and the Subsidiaries forming part of the Collateral. (x) A Notice of Borrowing ~~or Notice of Issuance, as applicable,~~ relating to the Initial Extension of Credit.. ▇▇▇▇▇ Respiratory - Revolving Credit Agreement (~~xiii~~xi) ~~Favorable opinions~~ A satisfactory opinion of ▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇~~Bird LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit I hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request~~. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated and that all Surviving Debt shall be in an amount and on terms and conditions reasonably satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers~~Agent. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gc) All ~~governmental~~ reasonable accrued and ~~third party consents~~ invoiced out-of-pocket fees and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses ~~of the Joint Lead Arrangers~~ (including the ~~accrued~~ reasonable fees and expenses of counsel to the ~~Joint~~ Lead ~~Arrangers~~ Arranger and the Administrative Agent and local counsel to the ~~Lender Parties)~~Agents) and all fees required to be paid under the Fee Letter of the Lead Arranger and the Administrative Agent in connection with the Loan Documents shall have been paid in full. (id) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Administrative Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received ~~all documentation and~~ such other ~~information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations~~approvals, ~~including~~ opinions or documents as any Appropriate Lender, acting through the ~~Patriot Act~~Administrative Agent, may reasonably request.

Appears in 1 contract

Sources: Senior Revolving Credit Agreement (Adams Respiratory Therapeutics, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent (unless otherwise specified)~~ Lenders, and in sufficient copies (except for the Notes~~) in sufficient copies~~ ), for each Lender Party: (i) The Notes payable to the order of the Lenders to duly executed by the ~~extent requested pursuant to Section 2.16~~Borrower. (ii) A security agreement in substantially the form of Exhibit ~~D hereto~~ E granting to the Administrative Agent, for the ratable benefit of the Lenders, a security interest in all of the Collateral of the Borrower and each Guarantor (together with each other security agreement ~~and security agreement supplement delivered~~ deliv ered pursuant to Section ~~5.01(j)~~5.13, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, ~~the “~~each a "Security Agreement”"), duly executed by the Borrower and each ~~Loan Party~~Guarantor, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsproper, duly ~~filed on or before the day of the Initial Extension of Credit~~ executed financing statements under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority ~~liens~~ Liens and security interests created under the Security Agreement, covering the Collateral described in the Security ~~Agreement,~~Agreement which are able to be perfected by filing; (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed ~~in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name the Borrower or any other Loan Party as debtor, together with copies of such ~~other~~ financing statements,; (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,; (ED) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement; (E) copies of the ~~Collateral~~ Assigned Agreements, if any, referred to in the Security Agreement, together with a consent (to the extent required by the Administrative Agent) to such assignments, if any, in substantially the form of Exhibit C to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Borrower; (F) certificates representing the Pledged Shares referred to in the Security Agreement, accompanied by undated stock powers executed in blank and irrevocable proxies; (G) a duly executed note assignment agreement in form and substance satisfactory to the Administrative Agent (as amended, modified and supplemented from time to time, the "Note Assignment Agreement") covering (and together with) all intercompany notes made by the Borrower's Subsidiaries payable to the Borrower and duly endorsed to the Administrative Agent; (H) in the case of the Borrower's Foreign Subsidiaries, all action necessary to allow the Administrative Agent to obtain a valid and enforceable, first priority, perfected security interest in 65% of the stock of each Foreign Subsidiary and a memorandum to the Administrative Agent from appropriate foreign counsel confirming that the Administrative Agent, on behalf of the ~~Lender~~ Secured Parties, ~~as additional insured~~ has obtained a valid and ~~loss payee with such responsible and reputable insurance companies~~ enforceable first priority perfected security interest in the relevant Pledged Stock or ~~associations, and~~ outlining the steps necessary to obtain a perfected security interest in ~~such amounts and covering such risks, as is satisfactory to~~ the ~~Administrative Agents and the Joint Lead Arrangers,~~ relevant Pledged Stock; and (FI) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (iii) ~~A guaranty in substantially~~ If required by the ~~form~~ Administrative Agent a collateral assignment of ~~Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant~~ lease assigning to ~~Section 5.01(j)~~the Administrative Agent, ~~in each case as amended, supplemented or otherwise modified from time to time~~for the ratable benefit of the Lenders, the ~~“Subsidiary Guaranty”)~~Borrower's interest in the lease of certain of its facilities, duly executed by ~~each Subsidiary Guarantor~~the Borrower, together with a recognition agreement duly executed by the property owner pursuant to which the property owner shall (A) consent to such collateral assignment, (B) acknowledge the interest of the Administrative Agent, for the ratable benefit of the Secured Parties and (C) permit the Administrative Agent or its assignee to become the successor in interest to the Borrower under the lease. (iv) ~~Certified copies of~~ If required by the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying Administrative Agent: (A) ~~as to a true and correct copy~~ fully executed counterparts of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related Documents, Mortgages duly executed by the ~~parties thereto and in form and substance satisfactory to the Lender Parties~~applicable Loan Party, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end evidence that counterparts of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall Mortgages have been ~~appointed as Process Agent under Section 8.12 hereof.~~ delivered to a title insurance company (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and~~ Lenders) insuring the ~~Administrative Agent) and shall remain~~ Lien of the Mortgages for recording in ~~effect; and no law~~ all places to the extent necessary or ~~regulation shall be applicable~~ desirable, in the reasonable judgment of the ~~Joint Lead Arrangers~~ Lenders, to create a valid and enforceable first priority lien on each Mortgaged Property listed on Schedule 4.21 (subject only to Permitted Real Property Encumbrances) in favor of Administrative Agent (or a trustee acting on behalf of Administrative Agent required or desired under local law) for the ~~Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees~~ benefit of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Secured Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.;

Appears in 1 contract

Sources: Credit Agreement (Audio Book Club Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of each Lender that has requested the ~~Lenders to the extent requested pursuant to Section 2.16~~same. (ii) ~~A security agreement in substantially the form~~ The Assignment of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), Interests duly executed by ~~each Loan Party,~~ Borrower together with: (A~~) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (CB) completed ~~requests for information~~searches with respect to each applicable Loan Party, ~~dated on or before the date of the Initial Extension of Credit,~~ and listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the ~~Security Agreement~~ Assignment of Interests that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (D) a subordination agreement executed and delivered by the property manager of each Borrowing Base Asset, (E) ~~evidence of~~ an Operating Lease Subordination Agreement with respect to each Operating Lease, (F) a franchisor comfort letter, in form and substance reasonably satisfactory to the ~~insurance required~~ Required Lenders, executed and delivered by the ~~terms~~ franchisors of ~~the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations~~each Borrowing Base Asset, (G) certificated Equity Interests in each Subsidiary Guarantor that directly owns a Borrowing Base Asset, and stock powers and membership interest powers (as the case may be) with respect thereto executed in ~~such amounts~~ blank, all in form and ~~covering such risks, as is~~ substance acceptable to the Administrative Agent, (H) evidence satisfactory to the Administrative ~~Agents and~~ Agent that the ~~Joint Lead Arrangers~~applicable owner of such Borrowing Base Asset shall have complied with the Subsidiary Guarantor Requirements, and (FI) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Security Agreement~~ Assignment of Interests has been taken (including, without limitation, receipt of duly executed payoff letters, ~~UCC-3~~ UCC termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) ~~A guaranty~~ American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 30 days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent in ~~substantially~~ a manner satisfactory to the ~~form~~ Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of ~~Exhibit E hereto~~ any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent, (~~together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j~~iv) engineering, soils, seismic (for those Borrowing Base Assets located in seismic zones 3 or 4), environmental and other similar reports as to the Borrowing Base Assets, in form and substance and from professional firms reasonably acceptable to the Administrative Agent, (v) copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each ~~case~~ Borrowing Base Asset, (vi) copies of each Management Agreement and Franchise Agreement, and all amendments thereto, entered into with respect to each of the Borrowing Base Assets, (vii) copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the Borrowing Base Assets, (viii) copies of all Liens on each of the Borrowing Base Assets, including, without limitation, any reciprocal easement agreements, easements and other items of record, (ix) estoppel certificates from the counterparties to any reciprocal easement agreements affecting any Borrowing Base Asset as ~~amended~~required by Administrative Agent, ~~supplemented~~ and (x) [Intentionally omitted], (xi) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or ~~otherwise modified from time~~ desirable and evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to ~~time,~~ create valid first and subsisting Liens on the ~~“Subsidiary Guaranty”),~~ property described in the Mortgages has been taken. (xii) This Agreement duly executed by ~~each Subsidiary Guarantor~~the Loan Parties and the other parties thereto. (ivxiii) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vxiv) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vixv) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation (except as to Borrower and Parent Guarantor where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect), dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~xvi) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by ~~a Responsible Officer~~its President, Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit)~~Closing Date, certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(xiv), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in ~~Section 3.01(a)(iv~~3.01(a)(xiii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~xvii) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ixxviii) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer,~~ historical operating statements (if any~~, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010~~), interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available and financial projections for the Parent Guarantor’s consolidated operations. (xix) Evidence of insurance (which may consist of binders or certificates of insurance) naming the Administrative Agent as additional insured with such responsible and reputable insurance companies or associations, ~~pro forma consolidated financial statements~~ and in such amounts and covering such risks, as ~~to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance~~ is satisfactory to the ~~Administrative Agent and~~ Lender Parties, including, without limitation, the ~~Joint Lead Arrangers,~~ insurance required by the terms of ~~balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~this Agreement. (~~xii~~xx) An opinion of counsel for the Loan Parties, with respect to such matters the Administrative Agent may reasonably request. (xxi) A Notice of Borrowing ~~or Notice of Issuance, as applicable,~~ relating to the Initial Extension of Credit. (~~xiii~~xxii) ~~Favorable opinions~~ A certificate signed by a Responsible Officer of ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~the Borrower, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for~~ dated the ~~Loan Parties~~Closing Date, stating that after giving effect to the Initial Extension of Credit the Parent Guarantor shall be in ~~substantially~~ compliance with the ~~forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ covenant contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent ~~and~~ showing the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~computations used in determining compliance with such covenants. (xxiii) [Intentionally Omitted.] (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and ~~each of~~ its ~~Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Subsidiaries, including the terms and conditions of the ~~charter~~charter and bylaws, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and~~ operating agreement, partnership agreement or other governing document of each ~~agreement or instrument relating to such structure or capitalization~~of them. (c) ~~All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free~~ Before and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before after giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no ~~Material Adverse Change~~ material adverse change in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, ~~2010~~2012. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to ~~have~~ result in a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “~~Disclosed~~ Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the ~~Transaction~~transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the ~~Disclosed~~ Material Litigation from that described on Schedule 4.01(f) hereto. (ge) All governmental and third party consents and approvals necessary in connection with the ~~Transaction~~ transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; , and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~transactions contemplated by the Loan Documents. (hf) Each Subsidiary Guarantor shall have complied with the Subsidiary Guarantor Requirements and provided evidence of such compliance satisfactory to the Administrative Agent. (g) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the Agents~~ Administrative Agent and the Lender Parties and all ~~accrued~~ reasonable, out-of-pocket expenses of the ~~Joint Lead Arrangers~~ Administrative Agent (including the ~~accrued~~ reasonable fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties~~Administrative Agent). (ih) The ~~Refinancing~~ Subsidiary Guarantors shall have ~~been consummated or shall be consummated or concurrently consummated~~ acquired the Borrowing Base Assets simultaneously with the ~~Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters~~ Initial Extension of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedCredit. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Summit Hotel Properties, Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with such ~~effectiveness or Initial Extension~~ Advance (and Article II of ~~Credit:~~this Agreement shall become effective on and as of the first date (the "EFFECTIVE DATE") on which such conditions precedent have been satisfied): (a) The Administrative Agent and the Arranger shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (~~unless otherwise specified),~~ or such other day as reasonably acceptable to the Administrative Agent) in form and substance reasonably satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent ~~(unless otherwise specified)~~ and (except for the Notes) in sufficient copies for each ~~Lender Party~~Lender: (i) a counterpart to this agreement duly executed by a Responsible Officer of each Loan Party. (ii) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section ~~2.16~~2.14. (iiiii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j)) or otherwise, in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of proper~~ financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions ~~that the Joint Lead Arrangers may deem~~ necessary ~~or desirable~~ in order to perfect the second priority (subject only to the Lien of the First Lien Representative in favor of the holders of the First Lien Obligations and ~~protect~~ Liens permitted under Section 5.02(a)(iii) or (iv) and Permitted Liens arising solely by the ~~first priority~~ operation of law) liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any of the Loan ~~Party~~ Parties as debtor, together with copies of such other financing statements, all as reasonably satisfactory to the Administrative Agent, (D) ~~evidence of~~ the ~~completion of all other recordings and filings of or with respect to the~~ Intellectual Property Security Agreement ~~that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required~~ duly executed by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangerseach Loan Party, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary ~~or desirable~~ in order to perfect the second priority (subject only to the Lien of the First Lien Representative in favor of the holders of the First Lien Obligations and ~~protect~~ Liens permitted under Section 5.02(a)(iii) or (iv) and Permitted Liens arising solely by the ~~first priority~~ operation of law) liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (~~iii~~iv) ~~A guaranty~~ Deeds of trust, trust deeds and mortgages in ~~substantially~~ form and substance reasonably satisfactory to the ~~form of Exhibit E hereto~~ Borrower and the Administrative Agent and its counsel and covering the Owned Real Properties (together with the Assignments of Leases and Rents referred to therein and each other ~~guaranty and guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"MORTGAGES"), duly executed by ~~each Subsidiary Guarantor~~the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been either (x) duly recorded on or before the day of the Initial Extension of Credit or (y) duly executed, acknowledged and delivered in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary in order to create a valid second (subject only to the Lien of the First Lien Representative in favor of the holders of the First Lien Obligations and Liens permitted under Section 5.02(a)(iii) or (iv) and Permitted Liens arising solely by the operation of law) and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amount acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid second (subject only to the Lien of the First Lien Representative in favor of the holders of the First Lien Obligations and Liens permitted under Section 5.02(a)(iii) or (iv) and Permitted Liens arising solely by the operation of law) and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) American Land Title Association form surveys, dated no more than 30 days before the day of the Initial Extension of Credit, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (D) engineering, soils and other reports as to the properties described in the Mortgages as may be requested by the Administrative Agent, in form and substance and from professional firms acceptable to the Administrative Agent, (E) such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as the Administrative Agent may deem necessary or desirable, (F) evidence of the insurance required by the terms of the Mortgages, (G) Favorable opinions of local counsel for the Loan Parties (i) in states in which the Owned Real Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings, in form and substance satisfactory to the Administrative Agent and the Borrower and (ii) in states in which the Loan Parties party to the Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of the Mortgages, in form and substance satisfactory to the Administrative Agent and the Borrower, and (H) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid second (subject only to the Lien of the First Lien Representative in favor of the holders of the First Lien Obligations and Liens permitted under Section 5.02(a)(iii) or (iv) and Permitted Liens arising solely by the operation of law) and subsisting Liens on the property described in the Mortgages has been taken. (ivv) Certified copies of (A) the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party as in full force and effect on, and without amendment or modification as of, the date of the Initial Extension of Credit, and of all documents evidencing other necessary corporate action, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party, ~~and of~~ (B) all documents evidencing (1) any governmental approvals and consents with respect to the Loan Documents and the First Lien Senior Credit Facilities and the transactions contemplated therein and (2) any material governmental approvals and consents with respect to the Acquisition and the Purchase Agreement and (C) other ~~necessary corporate action and governmental and other~~ material third party approvals and consents, if any, with respect to the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvi) A copy of the charter of each Loan Party certified by, and a copy of the good standing certificate in respect of such Loan Party issued by, the Secretary of State of the jurisdiction of ~~incorporation~~ incorporation, formation or organization of each Loan Party, dated reasonably near the ~~Effective Date, certifying (A) as to a true and correct copy~~ date of the ~~charter, articles~~ Initial Extension of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificateCredit. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws~~ bylaws, limited partnership agreement or ~~operating~~ limited liability company agreement, as applicable, of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, formation or organization and good standing or valid existence of such Loan Party as a ~~corporation~~ corporation, limited partnership or limited liability ~~company~~ company, incorporated, formed or organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, formation or ~~organization,~~ organization and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the ~~truth~~ accuracy in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related ~~Documents~~Documents (including all schedules and exhibits thereto), duly executed by the parties thereto (it being acknowledged that the Purchase Agreement executed and ~~in form and substance~~ delivered on September 15, 2005 is satisfactory to the ~~Lender Parties~~Administrative Agent), together with all material agreements, instruments and other documents delivered in connection therewith as the ~~Administrative Agent or the Joint Lead Arrangers~~ Arranger shall reasonably request. (x) ~~Certificates,~~ A certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole~~Parties, before and after giving effect to the Transaction, from ~~its~~ the Borrower's Chief Financial Officer~~, if any, or other Responsible Officer if none~~. (xi) ~~Audited annual financial statements dated December 31~~The Intercreditor Agreement, ~~2010~~in substantially the form of Exhibit G hereto, ~~interim financial statements dated the end~~ duly executed by each party thereto and acknowledged by each Loan Party. (xii) Evidence of the ~~most recent fiscal quarter for which financial statements are available~~Loan Parties' insurance coverage reasonably satisfactory to the Administrative Agent, ~~pro forma~~ demonstrating that the Loan Parties' existing insurance coverage remains in effect, together with endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, and a broker's letter reasonably satisfactory to the Administrative Agent, dated on the Effective Date, to the effect that such coverage is customary and reasonable when compared to the insurance coverage purchased by similarly situated companies and that such coverage complies with the requirements of this Agreement and the Collateral Documents. (A) Audited consolidated financial statements ~~as to~~ of (1) the Borrower and its Subsidiaries ~~and forecasts prepared by management of~~ for the ~~Borrower~~twelve-month period ended December 31, ~~in form and substance satisfactory to~~ 2002, the ~~Administrative Agent~~ twelve-month period ended December 31, 2003, and the ~~Joint Lead Arrangers~~twelve-month period ended December 31, ~~of balance sheets, income statements~~ 2004 and ~~cash flow statements on an annual basis for each year following~~ (2) the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP Company and ~~▇▇▇▇▇▇▇▇▇ Traurig LLP counsel~~ its Subsidiaries for the ~~Loan Parties~~twelve-month period ended June 30, ~~in substantially~~ 2003, the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent twelve-month period ended June 30, 2004 and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documentstwelve-month period ended June 30, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries2005, in each case ~~free~~ (x) audited by a nationally recognized independent accounting firm and ~~clear~~ (y) without any "going concern" or similar qualification, (B) unaudited consolidated financial statements of (1) the Borrower and its Subsidiaries, and (2) the Company and its Subsidiaries for any ~~Lien other than Liens created under the Loan Documents.~~ subsequent quarterly periods ended at least forty-five (d45) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory days prior to the ~~Administrative Agent~~ Effective Date (including, in any event, the restated consolidated balance sheet of the Company and ~~the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since~~ its Subsidiaries as at December 31, ~~2010. (f) There shall exist no action~~2005, ~~suit, investigation, litigation or proceeding affecting any Loan Party or any~~ and the related restated consolidated statement of income and restated consolidated statement of cash flows of the Company and its Subsidiaries ~~pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than~~ for the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.six months then

Appears in 1 contract

Sources: Term Loan Agreement (Open Solutions Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the ~~Lenders~~ Lenders, to the extent requested by any Lender pursuant to Section ~~2.16~~2.15(a). (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent, on behalf~~ Agreement, (F) copies of the ~~Lender Parties~~Assigned Agreements referred to in the Security Agreement, ~~as additional insured and loss payee~~ together with a consent to such ~~responsible and reputable insurance companies or associations~~assignment, ~~and~~ in ~~such amounts and covering such risks, as is satisfactory~~ substantially the form of Exhibit B to the ~~Administrative Agents and~~ Security Agreement, duly executed by each party to such Assigned Agreements other than the ~~Joint Lead Arrangers~~Loan Parties, (G) the Pledged Account Letters referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ Financing and the other transactions contemplated by the Loan Documents 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 ~~Transaction~~ Financing and the other transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (viv) A copy of a certificate of the Secretary of State of ~~each~~ the jurisdiction ~~reasonably requested by the Joint Lead Arrangers~~of qualification to do business, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a each Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (xviii) Certificates, in substantially the form of Exhibit FF hereto, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole,~~ before and after giving effect to the Transaction, from its ~~Chief Financial Officer, if any, or other Responsible Officer if none~~chief financial officer. (xiix) ~~Audited~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, ~~2010~~1998, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the Borrower ~~and its Subsidiaries~~ and forecasts prepared by management of the Borrower, in form and substance reasonably satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~x) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is reasonably satisfactory to the Lender Parties. (xi) A Notice of Borrowing ~~or Notice of Issuance, as applicable,~~ relating to the Initial Extension of Credit. (~~xiii~~xii) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P., ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xiii) ~~Evidence~~ The ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Escrow Agreement, on terms and conditions reasonably satisfactory to the Lender Parties, dated the date hereof among the Administrative ~~Agent~~ Agent, the Borrower and ~~the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions reasonably satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before giving effect to the Transaction, there shall have occurred no ~~Material Adverse Change~~ material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of the Parent and its Subsidiaries, taken as a whole since December 31, ~~2010~~1998. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") or (ii) ~~purports~~ could reasonably be expected to ~~affect~~ have a material adverse effect on the ~~legality, validity or enforceability of any~~ Transaction ~~Document~~ or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gf) All governmental and third party consents and approvals necessary in connection with the ~~Transaction~~ Financing and the other transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in ~~effect~~effect (other than any consents and approvals the absence of which, either individually or in the aggregate, would not have a Material Adverse Effect); all applicable waiting periods in connection with the Financing and the other transactions contemplated by the Loan Documents shall have expired without any action being taken by any competent authority (other than any action which either individually or in the aggregate with all such actions would not reasonably be expected to have a Material Adverse Effect), and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Financing or the other transactions contemplated by the Loan Documents or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (g) All Pre-Commitment Information shall be true and correct in all material aspects as of the date specified therein, and no additional information shall have come to the attention of the Administrative Agent or the Initial Lenders that could reasonably be expected to have a Material Adverse Effect. (h) The Lender Parties shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect and (ii) that the Transaction will have a Material Adverse Effect; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested. (i) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the ~~Agents~~ Administrative Agent and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the Administrative Agent and the Joint Lead Arrangers and local counsel to the ~~Lender Parties~~Lenders). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Initial Lenders shall be satisfied that (i) the Parent and its Subsidiaries will be able to meet their respective obligations under all employee and retiree welfare plans, (ii) the employee benefit plans of the Parent and its ERISA affiliates are, in all material respects, funded in accordance with the minimum statutory requirements, (iii) no "reportable event" (as defined in ERISA, but excluding events for which reporting has been waived) has occurred as to any such employee benefit plan and (iv) no termination of, or withdrawal from, any such employee benefit plan has occurred or is contemplated that could reasonably be expected to result in a material liability. (k) All of the proceeds of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Borrowing shall have ~~received all documentation~~ been deposited in the Escrow Account subject to the terms and ~~other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including~~ conditions of the ~~Patriot Act~~▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Escrow Agreement.

Appears in 1 contract

Sources: Credit Agreement (Itc Deltacom Inc)

Conditions Precedent to Initial Extension of Credit. ~~The effectiveness~~ Subject to the Closing Date Limitations, Section 2.01 of this ~~Amended~~ Agreement shall become effective on and ~~Restated Credit Agreement,~~ as of the first date (the “Effective Date”) on which the following conditions have been satisfied or waived and the obligation of each Lender to make an Advance (other than a Term C Advance, which is governed by Section 3.01 of the Second Lien Term Loan Agreement) or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the ~~occasion of the Initial Extension of Credit hereunder~~ Effective Date is subject to the satisfaction or waiver of ~~the following~~ such conditions precedent before or substantially concurrently with ~~such effectiveness or Initial Extension of Credit~~the Effective Date: (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative ~~Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party~~Agent: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section ~~2.16~~2.17. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan ~~Party~~Party party thereto, together with: (A) ~~certificates~~ certificates, if any, representing the Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of in all jurisdictions ~~that the Joint Lead Arrangers may deem~~ necessary ~~or desirable in order~~ to perfect ~~and protect~~ the first priority (subject only to Liens permitted by Section 5.02(a)) liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the ~~date of the Initial Extension of Credit~~Effective Date, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created therebyinsurance required by Section 5.01(d), (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action ~~that~~ required by the ~~Joint Lead Arrangers may deem necessary~~ Collateral Document or ~~desirable~~ reasonably requested by the Administrative Agent in order to perfect and protect the first priority (subject only to Liens permitted Section 5.02(a)) liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements)~~statements. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors (or ~~of the members or managers~~ similar governing body) of each Loan Party approving the Transaction 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 Transaction and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or ~~organization~~ formation, as applicable, of each Loan ~~Party, dated reasonably near the Effective Date,~~ Party certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ 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 ~~Organizational Documents~~ charter on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated or ~~organized~~ formed, as applicable, and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or ~~organization~~formation, as applicable. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan Party, signed on behalf of such Loan Party by ~~a Responsible Officer~~its Secretary or an Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ other applicable formation documents) of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, and (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party. (vi) A certificate signed by the Responsible Officer of the Borrower, dated the date of the Initial Extension of Credit, certifying as to (DA) the truth in all material respects of the ~~representations and warranties~~ Effective Date Representations contained in the Loan Documents as though made on and as of the date of the Initial Extension of ~~Credit~~ Credit, other than any such representations or warranties that, by their terms, refer to a specific date other than the Effective Date, in which case as of such specific date and (EB) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixviii) ~~Certified copies of each~~ A certified copy of the ~~Related Documents~~Purchase Agreement, duly executed by the parties ~~thereto and in form and substance satisfactory to the Lender Parties~~thereto, together with all ~~agreements, instruments~~ exhibits and ~~other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request~~schedules thereto. (ix) The Intercreditor Agreement duly executed by each party thereto and acknowledged by each Loan Party. (x) ~~Certificates~~Certificate, in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each Loan Party individually~~ the Parent and ~~together with~~ its ~~Subsidiaries~~Subsidiaries on a Consolidated basis, ~~taken as a whole, before and~~ after giving effect to the Transaction, from its ~~Chief Financial~~ Responsible Officer~~, if any, or other Responsible Officer if none~~. (xi) ~~Audited annual~~ (A) audited financial statements ~~dated~~ of the Company and its Subsidiaries for the three year period prior to the Acquisition, unaudited Consolidated financial statements of the Company and its Subsidiaries for each subsequent fiscal quarter ended at least 45 days before the Initial Extension of Credit in each case, together with related statements of income, stockholders’ equity and cash flows; (B) the Consolidated pro forma balance sheet of the Company and its Subsidiaries as at December 31, ~~2010, interim financial statements dated the end~~ 2006; (C) Consolidated pro forma forecasts of operations of the ~~most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower~~ Company and its ~~Subsidiaries and forecasts~~ Subsidiaries, prepared by management of the ~~Borrower~~Parent for each year commencing with December 31, ~~in form~~ 2006, until December 31, 2012; (D) a written certification from the chief financial officer of the Parent and ~~substance satisfactory~~ the Borrower that the pro forma Consolidated EBITDA of the Company and its subsidiaries for the twelve months ended June 30, 2007 was not less than $13,000,000; and (E) the pro forma financial statements delivered pursuant to clause (A) above and the forecasts heretofore delivered to the Administrative Agent and delivered pursuant to clause (B) above were prepared in good faith on the ~~Joint Lead Arrangers~~basis of the assumptions stated therein, which assumptions are fair in light of ~~balance sheets~~then existing conditions (it being understood that (1) such forecasts are subject to uncertainties and contingencies which may be beyond any Loan Party’s control, ~~income statements~~ (2) no assurances are given by any Loan Party that the results set forth in such forecasts or projections will be realized, and ~~cash flow statements on an annual basis for each year following~~ (3) the ~~Effective Date until~~ actual results may differ from the ~~Termination Date~~results set forth in such forecasts or projections and such differences may be material). (xii) The Administrative Agent shall have received evidence of insurance as required pursuant to Section 5.01(d) naming the Collateral Agent as additional insured and loss payee. (xiii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xiv) ~~Favorable opinions~~ An opinion of ▇Weil, Gotshal & ▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇~~LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ special counsel for the Loan Parties, in ~~substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may~~ form reasonably ~~request. (xiv) Evidence~~ satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~Agent. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Equity Investors shall ~~be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries~~ have made the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalizationContribution. (c) All ~~Equity Interests~~ reasonable and invoiced out-of-pocket fees and expenses accrued as of at least one Business Day prior to the ~~Guarantors shall~~ Initial Extension of Credit and required to be ~~owned~~ paid by ~~the Borrower or one or more of the Borrower’s Subsidiaries, in each case free~~ Section 9.04 and ~~clear of any Lien other than Liens created~~ all fees required to be paid under the Fee Letter in connection with the Loan ~~Documents~~Documents shall have been paid in full. (d) The ~~Administrative Agent and~~ Acquisition shall have been (or substantially simultaneously with the ~~Joint Lead Arrangers~~ Initial Extension of Credit shall be) consummated substantially in accordance with the terms of the Purchase Agreement (except for the payment of the purchase price, which shall be ~~satisfied that all Existing Debt~~made substantially concurrently with the Initial Extension of Credit) without any waiver or amendment not consented to by the Lender Parties of any term, ~~other than Surviving Debt~~provision or condition set forth therein, ~~has been prepaid, redeemed or defeased~~ in ~~full or otherwise satisfied and extinguished and that all Surviving Debt shall~~ any manner which would be ~~on terms and conditions satisfactory~~ materially adverse to the interests of the Lender Parties without the consent of the Administrative ~~Agent and the Joint Lead Arrangers~~Agent. (e) ~~Before giving effect~~ The Administrative Agent shall have received, at least five Business Days prior to the ~~Transaction~~Effective Date, ~~there shall have occurred no Material Adverse Change since December 31, 2010~~all information that it has reasonably requested pursuant to Section 9.13. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there The Administrative Agent shall have ~~been no adverse change in the status~~received such other approvals, opinions or ~~financial effect on~~documents as any Appropriate Lender, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and acting through the Administrative Agent, ~~in each case that restrains, prevents or imposes materially adverse conditions~~ may reasonably request upon ~~the Transaction~~reasonable prior notice. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: First Lien Credit Agreement (Berliner Communications Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received ~~on or before the Effective Date~~ the following, each dated ~~such day~~ as of the Closing Date (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party~~Lenders: (i) The Notes payable to the order of the Lenders to duly executed by the ~~extent requested pursuant to Section 2.16~~Borrower. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “The Security Agreement”), duly executed by each Loan Party, together with: (A) ~~certificates representing~~ Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, in the ~~Pledged Shares referred~~ Administrative Agent’s sole discretion, to ~~therein accompanied by undated stock powers executed~~ perfect the Administrative Agent’s security interest in ~~blank and instruments evidencing~~ the ~~Pledged Debt indorsed in blank,~~Collateral; (B) ~~acknowledgment copies~~ searches of ~~proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the~~ Uniform Commercial Code filings in the jurisdiction of ~~all jurisdictions that~~ formation of each Loan Party, the ~~Joint Lead Arrangers may deem necessary~~ jurisdiction of the chief executive office of each Loan Party and each jurisdiction where any Collateral is located or ~~desirable~~ where a filing would need to be made in order to perfect ~~and protect~~ the ~~first priority liens and~~ Administrative Agent’s security ~~interests created under the Security Agreement, covering the Collateral described~~ interest in the ~~Security Agreement,~~Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Liens permitted under Section 6.1; (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,; (D) original stock certificates representing the Pledged Shares referred to in the Security Agreement, accompanied by undated stock powers executed in blank and irrevocable proxies; and (E) the Note Assignment Agreement together with all intercompany notes in substantially the form of Exhibit G hereto (each an “Intercompany Note” and collectively, the “Intercompany Notes”) made by the Borrower’s Subsidiaries payable to the Borrower and duly endorsed to the Administrative Agent. (iii) Subject to Section 5.16: (A) mortgages or appropriate amendments to any existing Mortgages duly executed by the applicable Loan Party for each Mortgaged Property listed on Schedule 4.21, together with evidence that counterparts of the Mortgages or amendments have been delivered to a title insurance ~~required by~~ company (reasonably acceptable to the ~~terms~~ Lenders) insuring the Lien of the ~~Security Agreement naming~~ Mortgages or amendments for recording in all places to the ~~Collateral Agent~~extent necessary or desirable, in the reasonable judgment of the Lenders, to create a valid and enforceable first priority lien on each Mortgaged Property listed on Schedule 4.21 (subject only to Permitted Real Property Encumbrances) in favor of the Administrative Agent (or a trustee acting on behalf of the ~~Lender~~ Administrative Agent required or desired under local law) for the benefit of the Secured Parties~~, as additional insured and loss payee with~~ ; (B) mortgagee title insurance policies or appropriate endorsements to any existing title insurance policies (or binding commitments to issue such ~~responsible and reputable~~ title insurance policies or endorsements) which shall (1) be issued to the Administrative Agent for the benefit of the Secured Parties by title insurance companies ~~or associations, and in such amounts and covering such risks, as is~~ reasonably satisfactory to the Administrative ~~Agents~~ Agent (the “Mortgage Policies”) in amounts reasonably satisfactory to the Administrative Agent insuring that the Mortgages are valid and enforceable first priority mortgage liens on the respective Mortgaged Properties, free and clear of all defects, encumbrances and other Liens except Permitted Real Property Encumbrances, (2) be in form and substance reasonably satisfactory to the Administrative Agent (3) include, as appropriate, an endorsement for future advances under this Agreement, the Notes and the ~~Joint Lead Arrangers~~Mortgages and such other endorsements that the Administrative Agent in its discretion may reasonably request, (4) not include an exception for mechanics’ liens, and (5) provide for affirmative insurance and such reinsurance (including direct access agreements) as the Administrative Agent in its discretion may reasonably request; and (FC) surveys, in form and substance satisfactory to the Administrative Agent, of each Mortgaged Property listed on Schedule 4.21, reasonably acceptable to the Administrative Agent and sufficient to delete any standard printed survey exception which otherwise would be contained in the Mortgage Policies, certified by a licensed professional surveyor in a manner satisfactory to the Administrative Agent for the benefit of the Lenders. (iv) The Intellectual Property Security Agreement, duly executed by each Loan Party, together with evidence that all ~~other~~ action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first and only priority ~~liens~~ Liens and security interests created under the Intellectual Property Security Agreement has been ~~taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (~~iii~~v) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “The Subsidiary Guaranty”), duly executed by each Domestic Subsidiary ~~Guarantor. (iv) Certified copies~~ of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organizationBorrower. (vi) ~~A copy of a certificate~~ Originals or facsimiles (followed promptly by originals) of the ~~Secretary of State of~~ following, each ~~jurisdiction~~ in form and substance reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed satisfactory to the ~~date of such certificate.~~Administrative Agent and its legal counsel: (~~vii~~A) A copies of the certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents in the case of any Person that is not a corporation) of each Loan ~~Party, signed on behalf~~ Party certified to be true and complete as of ~~such Loan Party~~ a recent date by ~~a Responsible Officer, dated~~ the ~~date~~ appropriate governmental authority of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws state or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the other jurisdiction of its incorporation or organization, where applicable, and ~~the absence of any proceeding for the dissolution~~ certified by a secretary or ~~liquidation~~ assistant secretary of such Loan ~~Party, (D) the truth of the representations~~ Party to be true and ~~warranties contained in the Loan Documents as though made on and~~ correct as of the ~~date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.~~Closing Date; (~~viii~~B) ~~A certificate~~ such certificates of a resolutions or other action, incumbency certificates and/or other certificates of Responsible ~~Officer~~ Officers of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and (C) subject to Section 5.16, such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or ~~the Joint Lead Arrangers shall request~~formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xiA) Audited annual financial statements ~~dated December~~ of (1) the Borrower and its Consolidated Subsidiaries for the Fiscal Years ended July 31, ~~2010~~2003 and July 31, 2004 and (2) Crosstex for the fiscal years ended April 30, 2003, April 30, 2004 and April 30, 2005 (which 2005 audit shall be accompanied by an unqualified opinion of the auditors, which may be in draft form), (B) interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available,~~ available and (C) pro forma ~~consolidated~~ financial statements as to each of the ~~Borrower and its Subsidiaries~~ Loan Parties and forecasts prepared by management of the Borrower, all in form and substance reasonably satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination DateLenders. (~~xii~~viii) A Notice of Borrowing ~~or Notice of Issuance, as applicable, relating~~ with respect to each Facility pursuant to which the Borrower shall request an Initial Extension of Credit. (~~xiii~~b) ~~Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~All necessary governmental and third party approvals (which third party approvals are material) and compliance with all laws, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties~~including ERISA, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory except to the ~~Administrative Agent and~~ extent that failure by the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied Borrower, Crosstex or their Subsidiaries in connection with the ~~corporate and legal structure and capitalization~~ operations of ~~each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant~~ their business to ~~the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement~~ comply with laws would not have or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could would not reasonably be expected to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto~~ (~~the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability~~ excluding for purposes of ~~any Transaction Document or~~ this exception the consummation of the ~~Transaction,~~ Crosstex Acquisition and ~~there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto~~financing transaction contemplated herein). (gc) ~~All governmental and third party consents and approvals necessary in connection with the Transaction~~ The Borrower shall have ~~been obtained (without the imposition of any conditions that are not acceptable~~ delivered a certificate, in form and substance reasonably satisfactory to ~~the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and~~ the Administrative Agent, ~~in each case that restrains, prevents or imposes materially adverse conditions upon~~ attesting to the Solvency of the Borrower immediately before and immediately after giving effect to the Transaction, from its president or a vice president. (hd) Subject to Section 5.16, the Administrative Agent shall have received endorsements naming the Administrative Agent, on behalf of the Lenders, as loss payee or an additional insured, as applicable, under all insurance policies to be maintained with respect to the properties of the Borrower and its Subsidiaries (including Crosstex) forming any part of the Collateral under the Security Agreement and the other Collateral Documents. (e) There shall exist no Default under any of the Loan Documents. (f) The Borrower shall have paid ~~all accrued fees of the Joint Lead Arrangers, the Agents~~ to Administrative Agent and the ~~Lender Parties~~ Lenders all fees required to be paid on or before the Closing Date, and the Borrower shall have paid all ~~accrued expenses of the Joint Lead Arrangers (including the accrued fees~~ fees, charges and ~~expenses~~ disbursements of counsel to the ~~Joint Lead Arrangers and local counsel~~ Administrative Agent to the ~~Lender Parties)~~extent invoiced prior to or on the Closing Date. (g) The Crosstex Acquisition shall have been, or shall be concurrently, consummated pursuant to the terms and conditions of the Purchase Agreements and in accordance with applicable law, and otherwise on terms reasonably satisfactory to the Administrative Agent. The Purchase Agreements shall not have been materially altered, amended or otherwise changed or supplemented in any material respect or any material condition therein waived, without the prior written consent of the Administrative Agent. The Administrative Agent shall have received certified copies of each of the Crosstex Acquisition Documents, each of which shall be satisfactory to the Lenders and in full force and effect. (h) After giving effect to the Initial Extensions of Credit, there shall be at least $4,000,000 of Revolving Credit Availability. (i) The ~~Refinancing shall have been consummated~~ absence of any material adverse change in the condition (financial or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agentotherwise), operations, business, properties and/or prospects of (i) the Borrower and ~~all Liens~~ its Subsidiaries, taken as a whole, since July 31, 2004 and ~~guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated~~(ii) Crosstex, since April 30, 2005. (j) The ~~Lenders~~ Administrative Agent shall have received ~~all documentation~~ opinions of legal counsel to the Loan Parties in form and substance reasonably satisfactory to it. (k) There shall be no litigation or administrative proceedings or other ~~information required by bank~~ legal or regulatory ~~authorities under applicable “know your customer”~~ developments actual or threatened that would be reasonably expected to result in a Material Adverse Effect on (a) the condition (financial or otherwise), business, properties, operations, or prospects since July 31, 2004, in respect of the Borrower and ~~anti-money laundering rules~~ its Subsidiaries and ~~regulations~~since April 30, 2005, in respect of Crosstex or (b) on the rights and remedies of the Administrative Agent or on the ability of the Borrower and its Subsidiaries (including ~~the Patriot Act~~Crosstex) to perform their obligations.

Appears in 1 contract

Sources: Credit Agreement (Cantel Medical Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of ~~Credit:~~Credit (and Article II of this Agreement shall become effective on and as of the first date (the "Effective Date") on which such conditions precedent have been satisfied): (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j~~5.01(i), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in ~~blank and instruments evidencing the Pledged Debt indorsed in~~ blank, (B) ~~acknowledgment copies of~~ proper forms appropriate for filing with the STB and proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or ~~desirable~~ desirable, in each case, 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (E) evidence of the insurance required by the terms of this Agreement and endorsements thereto required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction 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 Transaction and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate (to the extent the Secretary of State in the applicable jurisdictions typically provides such a certification) and (C3) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vii) A ~~copy of a~~ certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate or Assistant Secretary of each Loan Party, ~~signed~~ countersigned on behalf of such Loan Party by ~~a Responsible Officer~~another officer of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v),~~ 3.01(a)(iv) and (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date ~~on which~~ of the ~~resolutions referred to in Section 3.01(a)(iv~~Initial Extension of Credit, and (ii) ~~were adopted and on~~ a certificate of the President or a Vice President of the Borrower, dated the date of the ~~Effective Date,~~ Initial Extension of Credit (C) the ~~due incorporation/organization~~ statements made in which certificate shall be true on and ~~good standing or valid existence of such Loan Party~~ as ~~a corporation or limited liability company organized under the laws~~ of the ~~jurisdiction~~ date of ~~its incorporation or organization~~the Initial Extension of Credit), ~~and the absence of any proceeding for the dissolution or liquidation of such Loan Party,~~ certifying as to (DA) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (EB) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vi) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixvii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) CertificatesA certificate, in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole,~~ Parties before and after giving effect to the Transaction, from ~~its Chief Financial Officer, if any, or other Responsible Officer if none~~the chief financial officer of the Parent. (xiviii) ~~Audited~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, ~~2010~~2002, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the ~~Borrower and its Subsidiaries~~ Parent and forecasts prepared by management of the ~~Borrower~~Parent, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~ix) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~x) ~~Favorable opinions~~ A favorable opinion of ~~▇▇▇▇▇▇▇~~ Sonnenschein, Nath & ~~▇▇▇▇▇▇▇~~Rosenthal LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, ~~in substantially~~ ▇▇ ▇▇▇stantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (~~b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated and that all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties. (d) The Administrative Agent shall have received a pay-off letter from JPMorgan Chase Bank confirming the amount required to satisfy all Debt outstanding under the Existing Credit Facility together with an undertaking to release all Liens securing such facility and otherwise reasonably satisfactory to the ~~Joint Lead Arrangers~~Administrative Agent. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2002. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any ~~court, governmental agency or arbitrator~~ Governmental Authority that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All ~~governmental~~ Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (h) The Lender Parties shall have completed a due diligence investigation of the Loan Parties, the Borrower and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested. (i) The Borrower shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties)~~Administrative Agent. (ij) The Refinancing shall have been consummated or shall be consummated or concurrently ~~consummated~~ with the ~~Effective Date,~~ Initial Extension of Credit and all ~~advances and other amounts owing~~ obligations under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and be terminated. (jk) The ~~Lenders~~ Lender Parties shall ~~have received~~ be satisfied with the nature of and amount of all ~~documentation~~ existing and ~~other information required by bank regulatory authorities under applicable “know your customer”~~ potential environmental concerns associated with the facilities of the Loan Parties, and ~~anti-money laundering rules and regulations, including~~ shall be satisfied with the ~~Patriot Act~~Borrower's plans with respect thereto.

Appears in 1 contract

Sources: Credit Agreement (Kansas City Southern)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) ~~The Administrative Agent~~ the administrative agent shall have received on or before the ~~Effective Date~~ day of the initial extension of credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ administrative agent (unless otherwise specified) and (except for the ~~Notes~~notes) in sufficient copies for each ~~Lender Party~~lender party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section ~~2.16~~2.15. (ii) Evidence satisfactory to it that either (i) Senior Subordinated Notes in a principal amount of $175,000,000 have been issued pursuant to the Senior Subordinated Indenture, together with true and complete copies of the Senior Subordinated Indenture or (ii) Bridge Loans in a principal amount of at least $85,000,000 are outstanding, together with true and complete copies of the Bridge Documentation. (iii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan ~~Party~~ Party, the Acquired Businesses or their respective Subsidiaries as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority~~ liens and security ~~interests~~ interests, and the priority thereof, created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (~~iii~~iv) A guaranty substantially in ~~substantially~~ the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (ivv) An intellectual property security agreement in substantially the form of Exhibit C to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (vi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ transactions contemplated hereby 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 ~~Transaction~~ transactions contemplated hereby and each Loan Document to which it is or is to be a party. (vvii) A copy of a certificate of the Secretary of State of the jurisdiction of ~~incorporation or~~ organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ other constitutive document of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter or other constitutive document on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiviii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or other constitutive document of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing document 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~ix) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixx) ~~Certified copies of each~~ Copies of the ~~Related~~ Acquisition Documents, ~~duly executed by the parties thereto and~~ which shall be in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (xxi) ~~Certificates,~~ Certificate in substantially the form of Exhibit FF hereto, attesting to the Solvency of ~~each~~ the Loan ~~Party individually and together with its Subsidiaries, taken as a whole~~Parties, before and after giving effect to the ~~Transaction~~Acquisition and the transactions contemplated hereby, from its Chief Financial ~~Officer~~Officer or Treasurer, ~~if any, or other Responsible Officer if none~~as the case may be. (xixii) ~~Audited annual~~ Such financial, business and other information regarding each Loan Party, the Acquired Businesses and their respective Subsidiaries as the Administrative Agent shall have requested, including, without limitation: (A) audited combined financial statements ~~dated~~ of the Acquired Businesses and their respective Subsidiaries for the fiscal year ended December 31, ~~2010~~2002, ~~interim financial statements dated the end~~ (B) an unaudited income statement of the ~~most recent fiscal quarter~~ Acquired Businesses and their respective Subsidiaries for ~~which financial statements are available~~the Fiscal Quarter ended March 31, 2003, (C) pro forma ~~consolidated financial statements as to~~ Consolidated balance sheet of the Borrower and its Subsidiaries giving effect to the Acquisition for the Fiscal Quarter ending immediately prior to closing, which in each case, shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and ~~forecasts prepared by management~~ all other accounting rules and regulations of the ~~Borrower~~SEC promulgated thereunder, ~~in form~~ and ~~substance satisfactory~~ (D) a written certification from the Chief Financial Officer that the pro forma financial statements delivered pursuant to clause (C) above and the forecasts heretofore delivered to the Administrative Agent were prepared in good faith on the basis of the assumptions stated therein, which assumptions are fair and ~~the Joint Lead Arrangers,~~ reasonable in light of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Creditthen existing conditions. (xiii) ~~Favorable opinions~~ Evidence of ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, ~~LLP~~ and ~~▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for~~ in such amounts and covering such risks, as is satisfactory to the ~~Loan~~ Lender Parties, including, without limitation, business interruption insurance with a reputable insurer and on terms and in ~~substantially the forms of respectively Exhibits G-1 and G-2 hereto and as~~ amounts reasonably acceptable to ~~such other matters as~~ the Administrative ~~Agent or the Joint Lead Arrangers may reasonably request~~Agent. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization Copies of each ~~Loan Party~~ employment agreement and other compensation arrangement with each executive officer of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and as the Administrative ~~Agent) and~~ Agent shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transactionrequest. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Esterline Technologies Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ each Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) ~~The~~ In addition to its receipt of executed counterparts of this Agreement by the Borrower and each Lender Party, the Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(j~~5.01(l), in each case as amended~~, supplemented or otherwise modified from time to time~~, the “Security Agreement”), duly executed by the Borrower and each ~~Loan Party~~Subsidiary of the Borrower, as grantors thereunder, together with: (A) certificates representing ~~the~~ any Pledged ~~Shares~~ Equity (other than Pledged Equity of Loan Parties that requires Gaming Authority approval) referred to therein accompanied by undated stock powers executed in blank and instruments evidencing ~~the~~ any Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of ~~Credit,~~ Credit listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any ~~Loan Party~~ of its Subsidiaries as debtor, together with copies of such other financing statements, (D) evidence ~~of the completion of~~ that all instruments and documents sufficient for all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder have been delivered to the Administrative Agent, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been ~~taken~~ taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination ~~statements~~ statements) except for any approvals required under Gaming Laws for the pledge of Equity Interests in the Loan Parties that hold licenses which will be applied for and ~~landlords’ and bailees’ waiver and consent agreements)~~obtained after the Closing Date. (iii) ~~A guaranty~~ An intellectual property security agreement in substantially the form of Exhibit ~~E hereto~~ C to the Security Agreement (together with each other ~~guaranty~~ intellectual property security agreement and ~~guaranty~~ intellectual property security agreement supplement delivered pursuant to Section ~~5.01(j~~5.01(l), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “~~Subsidiary Guaranty~~Intellectual Property Security Agreement”), duly executed by the Borrower and each ~~Subsidiary Guarantor~~of its Subsidiaries, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ transaction contemplated hereby 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 ~~Transaction~~ transaction contemplated hereby 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 or~~ organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be (“Organizational Documents”)~~ other constitutive document 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 ~~Organizational Documents~~ charter or other constitutive document on file in such Secretary’s office, and (2~~) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C~~) such Loan Party is ~~duly incorporated or organized and~~ in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President or such other officer as reasonably approved by the Administrative Agent, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or other constitutive document 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 and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing document 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 date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of ~~Credit and~~ Credit, (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. , and (~~viii~~F) ~~A certificate of a Responsible Officer of each Loan Party 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. (ixvii) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other ~~documents delivered in connection therewith~~ information regarding each Loan Party and its Subsidiaries as the Administrative Agent or shall have requested, including, without limitation: (A) copies of satisfactory unaudited consolidated balance sheets, statements of income and cash flows for the ~~Joint Lead Arrangers shall request. (x) Certificates, in substantially~~ Borrower and its subsidiaries for the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated year ended December 31, ~~2010~~2006, ~~interim~~ (B) evidence of the Borrower having filed with the Securities and Exchange Commission on Form 8-K the unaudited consolidated balance sheets, statements of income and cash flows for the Borrower and its subsidiaries for the year ended December 31, 2006, (C) copies of satisfactory audited consolidated financial statements ~~dated~~ for the ~~end of~~ Borrower and its subsidiaries for the ~~most recent~~ three fiscal ~~quarter~~ years ended December 31, 2005 and interim unaudited financial statements for each quarterly period ended since the last audited financial statements for which financial statements are available, (D) pro forma consolidated ~~financial~~ balance sheets, statements ~~as to~~ of income and cash flows for the Borrower and its ~~Subsidiaries~~ subsidiaries for the four-quarter period most recently ended prior to the Closing Date for which financial statements are available giving pro forma effect to the Transactions (prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended, and ~~forecasts~~ all other rules and regulations of the SEC under such Securities Act, and including other adjustments reasonably acceptable to the Arranger) and (E) yearly projections prepared by management ~~of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers,~~ of balance sheets, income statements and cash flow statements ~~on an annual basis for~~ of the Borrower and its subsidiaries, in each ~~year following~~ case in form and substance satisfactory to the ~~Effective Date until the Termination Date~~Administrative Agent. (~~xii~~viii) The Guaranty made by the Subsidiaries of the Borrower. (ix) Evidence of the Borrower’s insurance coverage reasonably satisfactory to the Administrative Agent, demonstrating that the Borrower’s existing insurance coverage remains in effect. (x) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xi) [Reserved]. (xii) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Loan Parties, the form reasonably acceptable to the Administrative Agent. (xiii) Favorable opinions of ▇▇▇▇▇▇▇▇▇▇ & Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ P.C., local counsel for the Loan Parties, in substantially the ~~forms of respectively Exhibits G-1 and G-2 hereto and as~~ form reasonably acceptable to ~~such other matters as~~ the Administrative ~~Agent or the Joint Lead Arrangers may reasonably request~~Agent. (xiv) ~~Evidence~~ A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, General Counsel for the Borrower, in form reasonably acceptable to the Administrative Agent. (xv) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (with such changes as may be required to account for local law matters) and otherwise in form and substance satisfactory to the Collateral Agent, covering the Mortgaged Properties as of the Closing Date (together with each other mortgage delivered pursuant to Section 5.01(l), in each case as amended, amended and restated, supplemented or modified the “Mortgages”), duly executed by the Borrower or such other appropriate Loan Party, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under Applicable Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the Applicable Laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to Collateral Agent; (xvi) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment or pro forma policy having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount equal to not less than 115% of the fair market value of such Mortgaged Property and fixtures, which fair market value is set forth on Schedule 3.01(a)(xvi), which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under Applicable Law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements as shall be reasonably requested by the Collateral Agent, and (E) contain no exceptions to title other than exceptions reasonably acceptable to the Collateral Agent; (xvii) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the Title Policy/ies and endorsements contemplated above; (xviii) evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to above; (xix) with respect to each Mortgaged Property, each Loan Party shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Mortgaged Property; (xx) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; (xxi) appraisals for the Mortgaged Properties that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to the Collateral Agent; (xxii) a survey with respect to each Mortgaged Property to the extent required by the Administrative Agent; (xxiii) evidence of the insurance required by the terms of the Mortgages and other Loan Documents; (xxiv) with respect to each Mortgaged Property, to the extent required by the Administrative Agent a Phase I environmental assessment and such other environmental report reasonably requested by the Administrative Agent by an environmental engineering firm and satisfactory to the Administrative Agent showing no environmental conditions in violation of Environmental Laws or liabilities under Environmental Laws. (xxv) such other consents, agreements and confirmations of third parties as the Administrative Agent may deem necessary or desirable and evidence that all other actions that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken; (xxvi) The Existing Debt shall be repaid in full and terminated and all collateral security therefor shall be released, and the ~~Joint Lead Arrangers that a nationally recognized Process~~ Administrative Agent shall have ~~been appointed as Process Agent under Section 8.12 hereof~~received a pay-off letter in form and substance satisfactory to it evidencing such repayment, termination, reconveyance and release; (xxvii) the Intercreditor Agreement, duly executed by the parties thereto; and (xxviii) a Perfection Certificate, duly executed by the Loan Parties. (b) The Administrative Agent ~~and~~ shall have received satisfactory confirmation that the ~~Joint Lead Arrangers~~ Facilities shall ~~be satisfied with the corporate and legal structure and capitalization of each Loan Party and~~ have been rated by each of ~~its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms~~ ▇▇▇▇▇’▇ and ~~conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.~~S&P. (c) ~~All Equity Interests~~ Since December 31, 2006, there shall not have occurred any change, development, event or circumstance which in the opinion of the ~~Guarantors~~ Lenders could reasonably be expected to have a Material Adverse Effect and the Administrative Agent shall ~~be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear~~ not have become aware of any ~~Lien~~ information or other ~~than Liens created under~~ matter that is inconsistent in a material and adverse manner with any information or other material theretofore disclosed to the ~~Loan Documents~~Administrative Agent. (d) The Administrative Agent and the ~~Joint Lead Arrangers~~ Revolving Credit Lenders shall ~~be satisfied that~~ have received all ~~Existing Debt~~fees, ~~other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied~~ and ~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to~~ the Administrative Agent ~~and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there~~ shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid received all ~~accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued~~ reasonable expenses ~~of the Joint Lead Arrangers~~ (including the accrued reasonable fees and expenses of counsel to the ~~Joint Lead Arrangers and~~ Administrative Agent, including local ~~counsel~~ counsel) required to be paid, reimbursed or delivered on or before the ~~Lender Parties)~~Closing Date. (ie) The ~~Refinancing shall have been consummated or~~ Administrative Agent shall be ~~consummated~~ satisfied that there are no encumbrances on any material real property owned by the Borrower or ~~concurrently consummated with the Effective Date, all advances and~~ any of its Subsidiaries other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedthan Permitted Liens. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: First Lien Credit Agreement (Landrys Restaurants Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ --------------------------------------------------- obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of ~~the Lenders to the extent~~ each respective Lender (if requested ~~pursuant to Section 2.16~~by any such Lender). (ii) A security ~~agreement~~ agreement, in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) where applicable, certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing statements, ~~duly filed on or before the day of the Initial Extension of Credit~~ in form for filing, under the Uniform Commercial Code of ~~all jurisdictions that~~ the ~~Joint Lead Arrangers may deem necessary or desirable in order~~ jurisdiction of incorporation of each Loan Party 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and~~ all other ~~effective financing statements filed~~ documents for recording and filing, in ~~all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor~~proper form, ~~together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of~~ for or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (ED) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, andAgreement, (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement ~~has been~~ is ready to be taken concurrently with the Initial Extension of Credit (including, without limitation, receipt of ~~duly executed payoff letters,~~ UCC-3 termination statements ~~and landlords’ and bailees’ waiver and consent agreements~~with respect to the Existing Credit Agreement). (iii) A ~~guaranty~~ guarantee, in substantially the form of Exhibit E hereto (together with each other ~~guaranty~~ guarantee and ~~guaranty~~ guarantee supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary ~~Guaranty”~~Guarantee"), duly executed by each ~~Subsidiary~~ Guarantor. (iv) An intellectual property security agreement, in substantially the form annexed to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "Intellectual Property Security Agreement"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement is ready to be taken concurrently with the Initial Extension of Credit. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction 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~~ Governmental Authorizations and other necessary corporate actions or third party approvals and consents, if any, with respect to the Transaction and each Loan Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter (or ~~articles of organization, as the case may be (“Organizational Documents”~~comparable Constitutive Document) of such Loan Party and each amendment thereto on file in such Secretary’s 's office ~~and~~ (B) that ~~(1)~~ such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's (or comparable Constitutive Document) on file in such Secretary’s 's office, ~~(2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate~~ and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificateincorporation. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or comparable Constitutive Document) of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws (or ~~operating agreement, as applicable,~~ comparable Constitutive Document) of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, and (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit except for representations and ~~(E) the absence~~ warranties that by their terms speak as of ~~any event occurring and continuing~~another specific date, ~~or resulting from the Initial Extension~~ which shall be true as of ~~Credit, that constitutes a Default~~such specific date. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ix) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements dated December 31, ~~2010~~2001, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma ~~consolidated~~ financial statements as to the Borrower and ~~its Subsidiaries and~~ forecasts prepared by management of the ~~Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers~~Company, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for ~~each year following~~ five years thereafter. (x) Evidence of insurance naming the ~~Effective Date until~~ Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the ~~Termination Date~~Lender Parties, including, without limitation, business interruption insurance. (xi) The Intercreditor Agreement duly executed by the Agent on behalf of the Lenders, the Collateral Agent, as defined therein, and any Lender or Affiliate thereof who is then a party to a Hedge Agreement. (xii) A Notice of Borrowing or Notice of Issuance, as applicable~~, relating to the Initial Extension of Credit~~. (xiii) ~~Favorable opinions~~ A favorable opinion of Steven J. Udicious, general counsel for the Loan Parties, ▇▇ ▇▇▇▇~~▇▇▇ & ▇▇▇▇▇▇▇, LLP and~~ ▇▇▇▇▇▇▇▇▇ ~~Traurig LLP counsel for~~ the ~~Loan Parties, in substantially the forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit F hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (xiv) ~~Evidence satisfactory~~ A favorable opinion of Riordan & McKinzie, special counsel to the Lender Parties, ▇▇ ▇▇bst▇▇▇▇▇▇▇▇ the form of Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The Administrative Agent shall have received satisfactory evidence that not less than 90% of the principal amount of the 2001 Subordinated Notes has been tendered to, and purchased by, the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged Borrower pursuant to an Offer to Purchase and Consent Solicitation dated March 21, 2002 and that any covenants in the ~~Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument~~ Indenture relating to such ~~structure~~ notes prohibiting the Borrower entering into this Agreement or ~~capitalization~~the consummation of the transactions contemplated hereby have been eliminated, waived or otherwise discharged pursuant to a duly executed Supplemental Indenture or other instrument satisfactory to the Administrative Agent. (c) All ~~Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free~~ Governmental Authorizations and ~~clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that~~ all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; and no ~~law or regulation~~ Requirements of Law shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the Transaction. (hd) The Borrower shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties)~~Agents. (i) ~~The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other~~ All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have ~~been repaid~~ been, or concurrently with the Initial Extension of Credit made on the Closing Date shall be, paid in full, (ii) all commitments of the ~~commitments thereunder shall have terminated and~~ lenders under the ~~letters of credit issued thereunder shall have been canceled or~~ Existing Credit Agreement (except for the ~~reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as~~ Existing Letters of Credit) shall have been, or concurrently with the Initial Extension of Credit ~~hereunder is acceptable to~~ made on the ~~Paying Agent)~~Closing Date shall be, ~~and all Liens and guaranties supporting~~ terminated in accordance with the terms of the Existing Credit Agreement, (iii) the lenders or any ~~Debt~~ collateral agent under the Existing Credit Agreement shall have ~~been fully released~~ executed such instruments (including without limitation Uniform Commercial Code termination statements) and ~~terminated.~~ agreed to take such other actions as are reasonably necessary to terminate or release all security interests granted in connection with the Existing Credit Agreement and (jiv) ~~The Lenders~~ adequate arrangements shall have ~~received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including~~ been made with the ~~Patriot Act~~issuer of the Existing Letters of Credit concerning the continuation thereof.

Appears in 1 contract

Sources: Credit Agreement (Davita Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ each Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The execution and delivery of all the Loan Documents. (b) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of each of the ~~Lenders to the extent requested pursuant to Section 2.16~~Lenders. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each ~~Loan Party~~Grantor (as defined therein), together with: (A) certificates representing the Pledged ~~Shares referred to therein accompanied~~ Equity accompanied, where applicable, by undated stock powers executed ~~in blank and instruments evidencing the Pledged Debt indorsed~~ in blank, (B) ~~acknowledgment copies of~~ proper financing statements, ~~duly filed on or before the day of the Initial Extension of Credit~~ in form sufficient for filing under the Uniform Commercial Code or other such filings of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to establish, perfect and protect the ~~first~~ priority of the liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described in the ~~Security Agreement~~Collateral Documents, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name ~~any Loan Party~~ the Borrower as debtor, together with copies of such other financing statements,, and (D) evidence and certificates of ~~the completion~~ insurance, broker's opinions, and letters of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance undertaking required by the terms of the ~~Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured~~ Vessel Mortgages and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements).Loan Documents. TODCO - Omnibus Credit Agreement (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors and By-laws of each ~~Loan~~ Credit Party and each Transocean Entity approving the Transaction 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 Transaction and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State or similar governmental authority of the jurisdiction of incorporation or organization of each ~~Loan~~ initial Credit Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles~~ charter of ~~incorporation or articles of organization~~such Credit Party, as amended through the ~~case may be (“Organizational Documents”)~~ date of such ~~Loan Party and each amendment thereto~~ certificate, on file in such Secretary’s 's or similar office ~~and~~ and, (i) in the case of each Credit Party that is organized under the laws of a jurisdiction located within the United States, (B) that (1) such ~~amendments are the only amendments to such Loan Party’s Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan~~ Credit Party has paid all franchise taxes to the date of such certificate and (C2) such ~~Loan~~ Credit Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its incorporation or organization, and (ii) in the case of a Credit Party organized under the laws of other jurisdictions comparable information to (B) certified by a competent local official or confirmed by local counsel. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each ~~Loan~~ Credit Party, signed on behalf of such ~~Loan~~ Credit Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such ~~Loan~~ Credit Party since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(b)(iv), (B) a true and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing documents of such ~~Loan~~ Credit Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(b)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such ~~Loan~~ Credit Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any plan or proceeding for the dissolution or liquidation of such ~~Loan~~ Credit Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of ~~Credit~~ Credit, other than any such representations or warranties that, by their terms, refer to a specific date other than the date of the Initial Extension of Credit, in which case as of such specific date, and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default or Event of Default. (~~viii~~vi) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each ~~Loan~~ Credit Party certifying the names and true signatures of the officers of such ~~Loan~~ Credit 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.. TODCO - Omnibus Credit Agreement (ixvii) ~~Certified copies of each~~ A certificate from the Chief Financial Officer of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) CertificatesBorrower, in substantially the form of Exhibit FF hereto, respectively, attesting to the Solvency of ~~each Loan Party individually~~ the Borrower and ~~together with~~ its Subsidiaries, taken as a whole, before and after giving effect to the Transaction~~, from its Chief Financial Officer, if any, or other Responsible Officer if none~~. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xiiviii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~ix) ~~Favorable~~ A favorable opinion of (A) ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Borrower and Transocean, in substantially the form of Exhibit G-1 hereto, (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in substantially the form of Exhibit G-2 hereto, and (C) such local counsel opinions from each foreign jurisdiction in which a Guarantor is organized as Administrative Agent may reasonable require. (x) A favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Liberian counsel to the Credit Parties, in substantially the form of Exhibit H-1 hereto. (xi) A favorable opinion of Holland & Knight LLP, counsel for the Administrative Agent. (xii) Vessel Mortgages, substantially in the form of Exhibit D-2, as the Collateral Agent may determine are necessary, for each Vessel listed on Schedule 4.01(y) hereto, together with evidence that each such Vessel Mortgage has been duly recorded or duly filed for recording in the proper ship's registry under the laws of the Vessel's flag and is in full force and effect. (xiii) Assignments of Insurances (the "Assignment of Insurances"), substantially in the form of Exhibit D-4, for each such Vessel listed on Schedule 4.01(y) hereto. (xiv) Assignments of Earnings (the "Assignment of Earnings"), substantially in the form of Exhibit D-3, for each such Vessel listed on Schedule 4.01(y) hereto. (xv) Copy of the most recent independent appraisal of the value (as determined in accordance with the appraisal procedures set forth in the Vessel Mortgages) of each Vessel listed on Schedule 4.01(y) hereto by ▇.▇~~, LLP and ▇▇▇~~. ▇▇▇▇▇▇ ~~Traurig LLP counsel~~ (USA) Inc., or another rig appraisal firm acceptable to the Administrative Agent. (xvi) Evidence of Certificates of Financial Responsibility for such Vessels as required by the Minerals Management Service or the United States Coast Guard, as the case may be. (xvii) a certificate signed by the President or a Vice-President of the Borrower as to the absence of material pending litigation. (xviii) a certificate signed by the President or a Vice-President of the Borrower that the representations and warranties contained in this Agreement are correct and the representations and warranties in each of the other Loan Documents are correct in all material respects, in each case on and as of such date, before and after giving effect to such Initial Extension of Credit and to the application of the proceeds therefrom, as though made on and as of such date, other than any such representations or warranties that, by their terms, refer to a specific date other than the date of such Initial Extension of Credit, in which case as of such specific date. (xix) a certificate signed by the President or a Vice-President of the Borrower that (1) no Default and no Material Adverse Effect has occurred and is continuing, or would result from such Initial Extension of Credit from the application of the proceeds therefrom, and (2) upon giving effect to such Initial Extension of Credit and the application of proceeds therefrom, (A) the aggregate principal amount of all outstanding Advances and the Available Amount of issued Letters of Credit shall not exceed the Borrowing Base; and (B) there shall be no breach of the requirements of Section 5.03(e), (together with calculations, in reasonable detail, demonstrating compliance with (A) and (B)). (xx) a certificate signed by the President or a Vice-President of Transocean as to the absence of a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of Transocean, or its ability to perform its obligations under the Subordination Agreement entered into for the ~~Loan Parties~~benefit of the Secured Parties hereunder. (xxi) (A) A certificate of the Secretary or Assistant Secretary of each Transocean Entity certifying and attaching, a true and correct copy of the charter of such Transocean Entity, as amended through the date of such certificate, and (B)(1) in the case of each Transocean Entity that is organized under the laws of a jurisdiction located within the United States, a copy of a certificate of the Secretary of State or similar governmental authority of the jurisdiction of incorporation or organization of such Transocean Entity, dated reasonably near the date of the Initial Extension of Credit, certifying that (I) such Transocean Entity has paid all franchise taxes to the date of such certificate and (II) such Transocean Entity is duly incorporated or organized and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation or organization, and (2) in the case of a Transocean Entity organized under the laws of other jurisdictions comparable information to (B)(1) certified by a competent local official or confirmed by local counsel. (xxii) A certificate of each Transocean Entity, signed on behalf of such Transocean Entity by its President or a Vice President and its Secretary or any Assistant Secretary, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of such Transocean Entity since the date of the certificate referred to in Section 3.01(b)(xxi), (B) a true and correct copy of the bylaws or other governing documents of such Transocean Entity as in effect on the date on which the resolutions referred to in Section 3.01(b)(iii) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation and good standing or valid existence of such Transocean Entity as a corporation organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any plan or proceeding for the dissolution or liquidation of such Transocean Entity, (D) the truth of the representations and warranties contained in the Subordination Agreement as though made on and as of the date of the Initial Extension of Credit, other than any such representations or warranties that, by their terms, refer to a specific date other than the date of the Initial Extension of Credit, in ~~substantially~~ which case as of such specific date, and (E) the ~~forms~~ absence of ~~respectively Exhibits G-1~~ any event occurring and ~~G-2 hereto~~ continuing, or resulting from the Initial Extension of Credit, that constitutes a breach or default under the Subordination Agreement. (xxiii) A certificate of the Secretary or an Assistant Secretary of each Transocean Entity certifying the names and true signatures of the officers of such Transocean Entity authorized to sign the Subordination Agreement and the other documents to be delivered hereunder and thereunder. (xxiv) a certificate signed by the President or a Vice-President of each Transocean Entity that the representations and warranties contained in the Subordination Agreement are correct in all material respects, in each case on and as of such date, before and after giving effect to such Initial Extension of Credit and to the application of the proceeds therefrom, as though made on and as of such date, other than any such representations or warranties that, by their terms, refer to a specific date other than the date of such Initial Extension of Credit, in which case as of such specific date. (c) such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Omnibus Credit and Guaranty Agreement (Todco)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Joint Lead Arrangers ~~and the Administrative Agent~~ (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the ~~Lenders to the extent requested pursuant to Section 2.16~~Lenders. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, if any, (B) ~~acknowledgment copies of~~ proper financing statements, duly ~~filed on or before the day of the Initial Extension of Credit~~ executed and in form for filing under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date ~~of the Initial Extension of Credit~~hereof, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements, (D) ~~evidence of the completion of all~~ proper other ~~recordings~~ documents, duly executed and ~~filings of or with respect to the Security Agreement~~ in form for recording and filing that the Joint Lead Arrangers and the Administrative 69 69 Agent may deem necessary or desirable in order to perfect and protect the Liens created ~~thereby, (E) evidence of the insurance required~~ by the ~~terms of the~~ Security ~~Agreement naming the Collateral Agent~~Agreement, ~~on behalf of the Lender Parties~~including any Intellectual Property Security Agreements required thereunder (but excluding any such filings, ~~as additional insured and loss payee with such responsible and reputable insurance companies~~ recordings or ~~associations, and~~ other actions which are specifically described in ~~such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers~~Section 5.01(q)), and (FE) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been ~~taken (~~taken, including, without limitation, receipt of duly executed payoff ~~letters,~~ letters and UCC-3 termination statements from the holders of Existing Debt (other than Surviving Debt), and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction (other than the Offer to Purchase) and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction 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 ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each ~~jurisdiction reasonably requested by the Joint Lead Arrangers~~state where each Loan Party owns or leases any material real property, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate.. 70 70 (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the names and true signatures of the officers of such Loan Party authorized to sign any Transaction Document to which it is or is to be a party, (E) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (EF) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related ~~Documents~~Documents which the Borrower or any of its Subsidiaries has entered into on or prior to the date of the Initial Extension of Credit, duly executed by the parties ~~thereto and in form and substance satisfactory to the Lender Parties~~thereto, together with all agreements, instruments and other documents delivered in connection therewith as the ~~Administrative Agent or the~~ Joint Lead Arrangers and the Administrative Agent shall request. (xix) ~~Certificates~~Certificate, in substantially the form of Exhibit FF hereto, attesting to the Solvency of the Borrower (and of each other Loan ~~Party individually and together with its Subsidiaries, taken as a whole,~~ Party) before and after giving effect to the Transaction, from ~~its~~ the Chief Financial ~~Officer, if any, or other Responsible~~ Officer ~~if none~~of the Borrower. (xix) ~~Audited~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, ~~2010~~1998, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the Borrower and ~~its Subsidiaries and~~ forecasts prepared 71 71 by management of the ~~Borrower~~Company, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (xi) Evidence of insurance naming the Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Joint Lead Arrangers. (xii) Certified copies of the employment agreements with Robe▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ John ▇. ▇▇▇▇▇▇▇ ▇▇▇ any other written compensation arrangements between such executive officer and any Loan Party or any of its Subsidiaries. (xiii) Certified copies of all Material Contracts of the type described under clause (iv) of the definition of such term of each Loan Party and its Subsidiaries. (xiv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xv) ~~Favorable opinions~~ A favorable opinion of ~~▇▇▇▇~~Fried, Frank, Harris, Shri▇▇▇ & ▇▇▇aco▇▇▇▇, ~~LLP and~~ ▇▇~~▇▇▇▇▇▇▇ Traurig LLP counsel~~ unsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit G hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xvi) ~~Evidence~~ A favorable opinion of each local counsel to the Lender Parties in the States of Illinois and New Hampshire, which counsel shall be reasonable satisfactory to the Joint Lead Arrangers, as to such matters as the Lender Parties through the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The ~~Administrative Agent and the~~ Joint Lead Arrangers shall have received satisfactory evidence that the Acquisition has been consummated in all material respects in accordance with the Acquisition Agreement and that each of the Equity Investors has complied in all material respects with all of its covenants and obligations under the Acquisition Agreement required to be performed by it on or prior to the date of the Acquisition. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party 72 72 and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (cd) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, ~~has~~ shall have been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers~~extinguished. (e) Before giving effect to the Transaction, there shall not have occurred no or become known any condition or event that would reasonably be expected to result in a Material Adverse ~~Change since December 31, 2010~~Change. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~could~~ would reasonably be expected to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent)~~ Lender Parties), and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (h) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers and local counsel to the Lender Parties~~Syndication Agent). (i) ~~The Refinancing~~ There shall not have occurred any material disruption or material adverse change in or affecting the United States financial, banking, or capital market conditions generally from those in effect on November 24, 1999, that, individually or in the aggregate, have adversely affected the consummation of the Transactions; and no banking moratorium shall have been ~~consummated~~ declared by United States federal or New York state banking authorities which shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedcontinuing. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Sovereign Specialty Chemicals Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the ~~occasion~~ date of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated as of such day (unless otherwise specified), in form and substance reasonably satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent ~~(unless otherwise specified)~~ and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “The Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in ~~blank~~blank or accompanied by appropriate instruments of transfer, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or ~~desirable~~ reasonably advisable in order to perfect and protect the ~~first priority~~ liens and security interests created under the Security ~~Agreement~~Agreement with the priority applicable thereto, covering the Collateral described in the Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ 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 completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or ~~desirable~~ reasonably advisable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (EF) evidence of the insurance required by the terms of the Security Agreement, (G) each Pledged Account Letter referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, (H) each Securities Account Control Agreement ~~naming~~ (if any) referred to in the Security Agreement, duly executed by the Collateral Agent, ~~on behalf of~~ the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents applicable Loan Party and the ~~Joint Lead Arrangers~~applicable securities intermediary, (I) each Commodity Account Control Agreement (if any) referred to in the Security Agreement, duly executed by the Collateral Agent, the applicable Loan Party and the applicable commodity intermediary, and (FJ) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem reasonably necessary or desirable 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,~~ letters and UCC-3 termination ~~statements and landlords’ and bailees’ waiver and consent agreements~~statements). (iii) ~~A guaranty~~ The Collateral Agent Agreement, in substantially the form of Exhibit E hereto, duly executed by each party thereto. (iv) The Subsidiary Guaranty, duly executed by each party thereto. (v) Deeds of trust, trust deeds, and mortgages, in substantially the form of Exhibit G hereto (with such changes as may be required to account for local law matters) and otherwise in form and substance satisfactory to the Administrative Agent and covering the Properties (excluding the properties listed on Schedule 3.01(a)(v) (collectively, the "IRB PROPERTIES", and each, an "IRB PROPERTY")) (together with each other ~~guaranty and guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j) and Section 5.01(t), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Subsidiary Guaranty”~~"MORTGAGES"), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary or desirable in order to create a valid first and subsisting Lien on the property described therein (subject to Permitted Encumbrances and Permitted Liens) in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) with respect to the properties set forth on Schedule 3.01(a)(v)(C), American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the Initial Extension of Credit, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (D) collateral access agreements, in form and substance satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of the leased real properties listed on Schedule 3.01(a)(v)(D) hereto, it being agreed that the Borrower shall use its commercially reasonable efforts to obtain such collateral access agreements on or prior to the date hereof and if the Borrower has not obtained the same on or prior to the date hereof, the Administrative Agent shall reserve against Loan Value an amount equal to three (3) months' rent that is payable by the Borrower or the applicable Loan Party, as tenant under the leases for the leased properties set forth on Schedule 3.01(a)(v)(D). (ivE) with respect to the Properties set forth on Schedule 3.01(a)(v)(E), zoning compliance letters from the applicable municipality, either substantially in the form delivered to Borrower's counsel by the Administrative Agent on June 16, 2003 or in the form customarily furnished by the applicable municipality, it being agreed that the Borrower shall use its commercially reasonable efforts to obtain such zoning compliance letters within sixty (60) days from the Effective Date, (F) evidence of the insurance required by the terms of the Mortgages, (G) an appraisal of each of the properties constituting Eligible Real Property and described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, which appraisals shall be from a Person acceptable to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent, and (H) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may deem necessary or desirable and evidence that all other actions that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (vi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvii) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiviii) A certificate of each Loan Party, signed on behalf of such Loan Party by ~~a Responsible Officer~~its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vii), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(vi) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, and (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party. (ix) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or other Responsible Officer acceptable to the Administrative Agent, dated the date of the Initial Extension of Credit (Dthe statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (EB) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~x) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixxi) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance reasonably satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall reasonably request. (xxii) ~~Certificates~~A certificate, in substantially the form of Exhibit FH, attesting to the Solvency of ~~each Loan Party individually~~ the Borrower and ~~together with~~ its ~~Subsidiaries~~subsidiaries, taken as a whole, before and after giving effect to the ~~Transaction~~transactions contemplated hereunder (and assuming that the Borrower and its Subsidiaries are not subject to asbestos-related liabilities), from ~~its~~ the Chief Financial ~~Officer, if any, or other Responsible~~ Officer ~~if none~~of the Borrower. (xixiii) ~~Audited~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited (with unqualified audit opinions) annual financial statements dated December 31, ~~2010~~2002, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, and for each fiscal month ending thereafter for which financial statements are available, a business plan containing pro forma ~~consolidated~~ financial statements as to the Borrower ~~and its Subsidiaries~~ and forecasts prepared by management of the Borrower, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income ~~statements and~~ statements, cash flow statements, statements indicating projected borrowing base availability, and a summary outlining the critical operating, investing and financing assumptions on a monthly basis for the fiscal year ending December 31, 2003 and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~xiv) One or more environmental assessment reports, in form and substance satisfactory to the Lender Parties, as to any hazards, costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries may be subject, the amount and nature of which and the Borrower's plans with respect to which shall be acceptable to the Lender Parties, together with documentation, in form and substance satisfactory to the Lender Parties, that Environmental Laws shall have been complied with. To the extent that either such report or reports or any other information that may become available to the Lender Parties shall disclose any hazards, costs or liabilities under Environmental Laws or otherwise that the Lender Parties deem material, the Lender Parties shall be satisfied that, subject to Section 8.15, such hazards, costs or liabilities were adequately reflected in the Borrower's financial reserves shown on the financial statements included in the Information Memorandum. (xv) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties. (xvi) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries. (xvii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit. (~~xiii~~xviii) ~~Favorable opinions~~ A favorable opinion of ~~▇▇▇~~Weil Gotshal & Manges, LLP, counsel for the ▇▇▇▇ & ▇▇▇▇▇▇▇, ~~LLP and~~ in ▇▇▇▇tantially the form of Exhibit J hereto. (xix) A favorable opinion of Richard A. Weinberg, General Counsel to the ▇▇▇▇▇▇▇▇, ▇▇ ~~Traurig LLP~~ ▇▇▇▇▇▇ntially the form of Exhibit M hereto. (xx) Opinions of local counsel for the Loan ~~Parties~~Parties in states in which the Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings substantially in ~~substantially~~ the ~~forms~~ form of ~~respectively Exhibits G-1~~ Exhibit J hereto, and ~~G-2 hereto~~ otherwise in form and ~~as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ substance satisfactory to the Administrative ~~Agent~~ Agent. (xxi) A favorable opinion of Shearman & Sterling, counsel for the Administrative Agent, in form and substance satisfactory to the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~Administrative Agent. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the ~~corporate and~~ corporate, legal ~~structure~~ structure, management, equity ownership and capitalization of ~~each Loan Party~~ the Borrower and each of its ~~Subsidiaries~~ Subsidiaries, the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished (other than contingent indemnification obligations) and all commitments relating thereto terminated and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Building Materials Manufacturing Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction (or due waiver) of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit; provided that all documents specified in this Section 3.01 (including, with respect to the Foreign Borrower, this Agreement) that are executed by or on behalf of the Foreign Borrower and all Collateral Documents granting a security interest in the Equity Interests or assets of the Foreign Borrower or its Subsidiaries or ESK GmbH shall not be effective upon the Closing Date (and the Foreign Borrower shall not be a party to this Agreement on the Closing Date) but instead shall be effective automatically and without any further action on the part of any Loan Party or any other Person (and the Foreign Borrower shall become a party to this Agreement) upon (i) consummation of the Transfer and (ii) irrevocable receipt of an amount equal to EUR 104,073,429.29 in the Escrow Account: (a) ~~The~~ In addition to its receipt of executed counterparts of this Agreement by each Loan Party and each Lender Party, the Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified~~) and (except for the Notes) in sufficient copies for each Lender Party:~~): (i) The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms of Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by ~~each Loan Party~~the US Borrowers, as grantors thereunder, together with: (A) certificates representing ~~the~~ any Pledged ~~Shares~~ Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing ~~the~~ any Pledged Debt indorsed in blank, (B) ~~acknowledgment copies of~~ proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of ~~Credit,~~ Credit listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (B) above ~~and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name any of the Loan ~~Party~~ Parties as debtor, together with copies of such other financing statements, (D) ~~evidence of the completion of~~ all other ~~recordings and filings of~~ documents in proper form for recording or ~~with respect to the Security Agreement~~ filing that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ first priority (except as permitted hereunder) liens and security interest created ~~thereby~~under the Security Agreement, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement, (F) the ~~Collateral Agent~~Pledged Account Letters referred to in the Security Agreement, ~~on behalf of~~ duly executed by each Pledged Account Bank referred to in the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersSecurity Agreement, and (FG) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken or will be promptly taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) ~~A guaranty~~ The Administrative Agent shall have received the following German law collateral agreements (the agreements referred to under (A) through (E), inclusive, below are collectively referred to as the “German Collateral Agreements” and each as a “German Collateral Agreement”): (A) pledge agreements, in substantially the form of Exhibit E-1 hereto (as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01), duly executed by ESK LLC with respect to the pledge of Equity Interests of its German Subsidiaries, (B) an account pledge agreement, in substantially the form of Exhibit E-2 hereto (as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01) with respect to accounts held by the Foreign Borrower in Germany, (C) a global assignment agreement, in substantially the form of Exhibit E-3 hereto (as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01) with respect to receivables, insurances, intra-group loans, intellectual property rights and claims under the Purchase Agreement of the Foreign Borrower governed by German law, (D) an assignment agreement in substantially the form of Exhibit E-4 hereto (as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01) with respect to claims under the Purchase Agreement of ESK LLC, (E) a security transfer agreement, in substantially the form of Exhibit E-5 hereto (as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01) with respect to the tangible moveable property (including inventory) of the Foreign Borrower located in Germany, and (1) evidence of the due execution and delivery of all further instruments and documents, and the taking of all further actions (including, without limitation, the completion of all recordings and filings of or with respect to any of the German Collateral Agreements that may be necessary or that the Administrative Agent may reasonably deem desirable in order to perfect and protect the liens and security interests created under the German Collateral Agreements and (2) opinions of local counsel to the pledgors thereunder as to the matters in clause (1) in form and substance satisfactory to the Administrative Agent. (iv) An intellectual property security agreement in substantially the form of Exhibit E ~~hereto~~ to the Security Agreement (together with each other ~~guaranty~~ intellectual property security agreement and ~~guaranty~~ intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “~~Subsidiary Guaranty~~Intellectual Property Security Agreement”), duly executed by ~~each Subsidiary Guarantor~~the applicable Loan Parties, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken or will be promptly taken. (ivv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors~~ Directors (or of the ~~members or managers~~ equivalent thereof), if applicable, of each Loan Party approving the Acquisition and the other elements of the Transaction 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 Transaction and each Loan Document to which it is or is to be a party. (vvi) A If applicable, a copy of a certificate of the Secretary of State (or similar Governmental Authority) of the jurisdiction of ~~incorporation or~~ organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation~~ charter or ~~articles of organization, as the case may be~~ other constitutive document (~~“Organizational Documents”~~including any operating agreements) of such Loan Party and each amendment thereto on file in such Secretary’s ~~office and~~ (or similar Governmental Authority’s) office, (B) that (1) such amendments are the only amendments to such Loan Party’s ~~Organizational Documents~~ charter or other constitutive document on file in the office of such ~~Secretary’s office~~Secretary (or similar Governmental Authority), (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C3) such Loan Party is duly ~~incorporated~~ organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation or~~ organization. , and (viC) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed with respect to the ~~date of such certificate~~Foreign Borrower and ESK GmbH, a certified commercial register excerpt. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary or, in the case of the Foreign Borrower, the authorized directors of the Foreign Borrower, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter or other constitutive document of such Loan Party since the date of the Secretary of State’s (or similar Governmental Authority’s) certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws or ~~operating agreement, as applicable,~~ other governing document of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, and with respect to the Foreign Borrower, a true and correct copy of its articles of association as of the date of the Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and, in the case of the Foreign Borrower, on a pro forma basis after giving effect to the Acquisition, and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default and, in the case of the Foreign Borrower, on a pro forma basis after giving effect to the Acquisition, the absence of any event occurring and continuing, or resulting from the Acquisition, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party or, in the case of the Foreign Borrower, of the managing director of its general partner attaching a copy of the commercial registry, 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. (ix) ~~Certified copies of each~~ Evidence of the ~~Related Documents, duly executed by the parties thereto and in form and substance~~ Loan Parties’ insurance coverage reasonably satisfactory to the ~~Lender~~ Administrative Agent, demonstrating that the Loan Parties’ existing insurance coverage remains in effect, together with ~~all agreements~~endorsements naming the Administrative Agent, ~~instruments and other documents delivered in connection therewith~~ on behalf of the Lenders, as an additional insured or loss payee, as the case may be, and, with respect to the US Borrowers’ insurance coverage, a broker’s letter reasonably satisfactory to the Administrative ~~Agent or~~ Agent, dated on the ~~Joint Lead Arrangers shall request~~Closing Date to the effect that such coverage is customary and reasonable when compared to the insurance coverage purchased by similarly situated companies. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xi) A solvency certificate of the Vice President and Chief Financial Officer of each US Borrower in substantially the form of Exhibit F hereto, certifying as to such US Borrower’s Solvency and compliance with the matters set forth in Section 4.01(r). (xii) The Consolidated financial statements of Ceradyne and its Subsidiaries for the Fiscal Year ended December 31, 2003 and unaudited Consolidated financial statements for the fiscal quarter ended March 31, 2004. (xiii) Favorable legal opinions of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇~~, LLP and~~ ▇▇▇ & ▇▇▇▇▇▇▇ ~~Traurig LLP~~ ▇▇▇▇, counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively~~ Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (xiv) ~~Evidence~~ An escrow agreement (the “Escrow Agreement”), in substantially the form of Exhibit I hereto, duly executed by ▇▇▇▇▇▇-Chemie GmbH, as seller, ESK LLC, as purchaser, and ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as escrow agents. (xv) A copy of the Purchase Agreement duly executed by the parties thereto. (xvi) A certificate of merger, in form and substance satisfactory to the Administrative ~~Agent and~~ Agent, evidencing the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~merger of Ceradyne Advanced Products, Inc. into Ceradyne. (b) The Administrative Agent ~~and the Joint Lead Arrangers~~ shall ~~be satisfied with the corporate and legal structure and capitalization of each Loan Party and~~ have received satisfactory confirmation that Ceradyne’s senior secured long-term bank debt has been rated by each of ~~its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms~~ ▇▇▇▇▇’▇ and ~~conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.~~S&P. (c) All ~~Equity Interests~~ Governmental Authorizations and third party approvals (or arrangements satisfactory to the Lenders in lieu of such approvals) necessary in connection with the Acquisition (including related mergers, if any) and the other elements of the ~~Guarantors shall be owned by~~ Transaction and the ~~Borrower or one or more~~ continuing operations of the ~~Borrower’s Subsidiaries~~Loan Parties shall have been obtained and be in full force and effect, ~~in each case free~~ and ~~clear~~ all material waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents, or imposes materially adverse conditions upon, the consummation of the transactions contemplated herein. There shall not exist any ~~Lien~~ judgment, order, injunction or other ~~than Liens created under~~ restraint prohibiting, or imposing materially adverse conditions upon, or making economically unfeasible, the ~~Loan Documents~~consummation of the Acquisition, the funding of the Facilities or any other elements of the Transaction. (d) ~~The Administrative Agent~~ There shall exist no material event of default (or condition which would constitute an event of default with the giving of notice or the passage of time) under any Material Contract and ~~the Joint Lead Arrangers~~ no Material Contract of any of any Loan Party or their respective Subsidiaries shall ~~be satisfied that all Existing Debt, other than Surviving Debt, has~~ have been ~~prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory~~ terminated prior to ~~the Administrative Agent and the Joint Lead Arrangers~~its maturity. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The ~~Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the~~ Agents and the Lender Parties shall have received all fees and ~~all accrued~~ expenses ~~of the Joint Lead Arrangers~~ (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Agents and local counsel to the Lender Parties) required to be paid or delivered on or before the Closing Date in respect of the Initial Extension of Credit hereunder. (f) There shall have been no Material Adverse Change in the operations or in the customers, products, supplies or suppliers of Ceradyne and its Subsidiaries, on a Consolidated basis, since December 31, 2003. (g) (i) There shall be no action, suit, proceeding or investigation (whether previously existing, newly instituted or threatened) before, and no order, injunction or decree shall have been entered by, any court, arbitrator or Governmental Authority (including the Securities and Exchange Commission), and no regulatory change (foreign or domestic) or intervention by any Governmental Authority (foreign or domestic) shall have occurred or be pending, either (A) seeking to enjoin, restrain, restrict, set aside or prohibit, to impose material conditions upon, or to obtain substantial damages in respect of, the consummation of the Acquisition, the funding hereunder, or any of the other elements of the Transaction or (B) affecting the business, management affairs or financial reporting of Ceradyne on a Consolidated basis, that would be reasonably likely to result in a material adverse effect on the business of Ceradyne on a Consolidated basis, and (ii) no event that would have to be reported in the management report (Lagebericht) of a large corporation (grosse Kapitalgesellschaft) according to German law shall have occurred in respect of the Foreign Borrower and its Subsidiaries. (h) After giving pro forma effect to the Transaction, the Leverage Ratio of Ceradyne and its Subsidiaries shall not be greater than 2.85:1.00, as certified by a Responsible Officer of Ceradyne to the Administrative Agent as of the Closing Date. (i) ~~The Refinancing~~ After giving pro forma effect to the Transaction, Funded Debt of Ceradyne and its Subsidiaries shall ~~have been consummated or shall be consummated or concurrently consummated with~~ not exceed $130 million on the ~~Effective~~ Closing Date, ~~all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters~~ as certified by a Responsible Officer of ~~credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable~~ Ceradyne to the ~~Paying~~ Administrative Agent ~~(it being understood that treating such letters~~ as of ~~credit as Existing Letters of Credit hereunder is acceptable to~~ the ~~Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated~~Closing Date. (j) The ~~Lenders~~ Administrative Agent shall ~~have received all documentation and other information required by bank regulatory authorities~~ be satisfied that under ~~applicable “know your customer” and anti-money laundering rules and regulations~~the terms of the Purchase Agreement in connection with the Acquisition, ~~including~~ (i) the ~~Patriot Act.~~Seller (as defined in the Purchase Agreement

Appears in 1 contract

Sources: Credit Agreement (Ceradyne Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit~~: (a)~~ , which shall occur no later than August 31, 2001: The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party~~: (i)~~ : The Notes payable to the order of the Lenders to the extent requested ~~pursuant to~~ in accordance with Section 2.16~~. (ii)~~ . A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with~~: (A)~~ : certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank~~, (B)~~ , acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements~~, (D)~~ , evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby~~, (E)~~ , evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement, the ~~Collateral Agent~~Pledged Account Letters referred to in the Security Agreement, duly executed by each Pledged Account Bank listed on ~~behalf~~ Schedule 3.01(A)(ii)(F) or, in the reasonable discretion of the ~~Lender Parties~~Administrative Agent with respect to such Pledged Account Banks that will not execute a Pledged Account Letter, copies of duly executed Pledged Instructions Letter, in the form of Exhibit L hereto, provided by the applicable Pledgor (as ~~additional insured~~ defined in the Security Agreement) and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) acknowledged by Pledged Account Bank. evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements)~~. (iii)~~ . A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary Guaranty”"), duly executed by each Subsidiary Guarantor. . An intercreditor agreement in substantially the form of Exhibit M hereto, duly executed by each of the parties thereto (~~iv)~~ the "Intercreditor Agreement"). Certified copies of the resolutions of the board of ~~directors~~ directors, board of members, manager(s) or ~~of the members or managers~~ general partners, as applicable, of each Loan Party approving the Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate or partnership action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each ~~Loan~~ Transaction 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~~ organization or ~~organization~~ reorganization of each Loan ~~Party~~Party as set forth on Schedule 3.01(a)(vi), dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter~~articles or incorporation, articles of ~~incorporation~~ organization or ~~articles~~ certificate of ~~organization~~formation, as ~~the case may be (“Organizational Documents”)~~ applicable, of such Loan Party and each amendment thereto on file in ~~such Secretary’s~~ its office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's articles or incorporation, articles of organization or certificate of formation, as applicable, on file in ~~such Secretary’s~~ its office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization~~. (vi)~~ . A copy of a certificate of the Secretary of State of each ~~jurisdiction reasonably requested by~~ of the ~~Joint Lead Arrangers~~States listed on Schedule 3.01(a)(vii), dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, with respect to each Loan Party as listed on Schedule 3.01(a)(vii), stating that a such Loan Party is duly qualified and in good standing as a foreign entity ~~in such State~~ and has filed all annual reports required to be filed to the date of such certificate~~. (vii)~~ . A certificate of each Loan Party, signed on behalf of such Loan Party by a ~~Responsible Officer~~duly authorized officer of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ articles or incorporation, articles of organization or certificate of formation, as applicable, of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws~~ bylaws, operating agreement or ~~operating agreement~~partnership agreement of such Loan Party, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/~~organization and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan ~~Party,~~ Party (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default~~. (viii)~~ . A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder~~. (ix)~~ . Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request~~. (x)~~ . Certified copy of the Confirmation Order and evidence that the Plan of Reorganization shall have become effective in accordance with its terms and that it shall have been substantially consummated including, without limitation, payment of all DIP Financing Claims pursuant to Article III. A. 1. D. thereof. Certificates, in substantially the form of Exhibit FG hereto, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole,~~ before and after giving effect to the Transaction, from its ~~Chief Financial Officer~~principal accounting officer; and such third-party appraisals and field examinations required under Section 3.01(n) hereof in form and substance satisfactory to the Administrative Agent, ~~if any~~from a nationally recognized appraisal firm, valuation consultant or investment banking firm satisfactory to the Administrative Agent. Such financial, business and other ~~Responsible Officer if none. (xi) Audited~~ information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated ~~December 31~~February 3, ~~2010~~2001, interim financial statements dated the end of the most recent ~~fiscal quarter~~ Fiscal Quarter for which financial statements are ~~available~~available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit), pro forma ~~consolidated~~ financial statements as to the Borrower ~~and its Subsidiaries~~ and forecasts prepared by management of the Borrower, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a monthly basis for each Fiscal Month for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date~~. (xii)~~ . A letter, in form and substance satisfactory to the Administrative Agent, from the Parent Guarantor to Deloitte & Touche, its independent certified public accountants, advising such accountants that the Agents and the Lender Parties have been authorized to exercise all rights of the Borrower to require such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to the Parent Guarantor and its Subsidiaries and directing such accountants to comply with any reasonable request of any Agent or any Lender Party for such information. Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance. Certified copies of each employment agreement with an annual base salary in excess of $200,000.00 with each executive officer of any Loan Party or any of its Subsidiaries as the Administrative Agent shall request. A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit~~. (xiii) Favorable opinions~~ . A favorable opinion of ▇▇▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇, LLP~~ and ▇▇▇▇▇▇▇▇~~▇ Traurig LLP~~ , P.C., counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit H hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request~~. (xiv) Evidence satisfactory~~ . A favorable opinion of Jenkens & ▇▇▇▇▇▇▇▇▇, P.C., local counsel to the Lender Parties in Texas, in substantially the form of Exhibit I-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. A favorable opinion of ▇▇▇▇▇▇ & Silver, Ltd., local counsel to the Lender Parties in Nevada, in substantially the form of Exhibit I-2 hereto and as to such other matters as any Lender Party through the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The~~ Administrative Agent ~~and the Joint Lead Arrangers~~ may reasonably request. The Lender Parties shall be satisfied with the corporate and legal ~~structure~~ structure, capitalization, management team and ~~capitalization~~ board of directors, board of members, manager(s) or general partners, as applicable, of each Loan Party and each of its ~~Subsidiaries~~ Subsidiaries, in each case after giving effect to the Plan of Reorganization, the Equity Interests in which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the ~~charter~~articles of incorporation, ~~bylaws~~ articles of organization or certificate of formation, as applicable, and the bylaws, operating agreement or partnership agreement, as applicable, and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such ~~structure~~ structure, capitalization management team or ~~capitalization. (c~~board of directors, board of members, manager(s) ~~All Equity Interests of the Guarantors shall be owned by the Borrower~~ or ~~one or more of the Borrower’s Subsidiaries~~general partners, ~~in each case free and clear of any Lien other than Liens created under the Loan Documents. (d)~~ as applicable. The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers. (e)~~ Lender Parties. Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since ~~December 31~~February 3, ~~2010. (f)~~ 2001. There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any ~~court~~Governmental Authority, ~~governmental agency or arbitrator~~ that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the ~~Transaction~~transactions contemplated by the Transaction Documents, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto~~. (g)~~ . All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction. (h)~~ Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Lender Parties shall have completed a due diligence investigation of the Parent Guarantor and its Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Parent Guarantor and its Subsidiaries as they shall have requested. The Borrower shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agent (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties)~~. (i)~~ . The ~~Refinancing~~ Borrower shall have provided the Administrative Agent with copies of any and all reports, correspondence or other information from the Office of the Comptroller of the Currency with respect to GNB, provided, that the provision of such reports, correspondence or information shall not be prohibited by applicable laws, regulations and rules, and the Lender Parties shall be satisfied that GNB is in compliance with the rules and regulations of the Federal Deposit Insurance Corporation. The Lender Parties shall be satisfied with the status of the ongoing investigation of the Parent Guarantor by the Securities Exchange Commission. The Confirmation Order shall be on terms reasonably acceptable to the Administrative Agent and shall not have been reversed, vacated, modified or stayed, no application or motion shall have been filed or served on any Loan Party seeking a stay pending appeal and the Plan of Reorganization shall not have been amended, supplemented or otherwise modified without the prior written consent of the Administrative Agent. Old Stage shall have been merged with and into the Parent Guarantor, with the Parent Guarantor as the surviving corporation of such merger, in accordance with the terms of the Plan of Reorganization. The Securitization Program shall have been consummated or and the Lender Parties shall be ~~consummated or concurrently consummated~~ satisfied with the ~~Effective Date, all advances~~ terms and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsconditions thereof, including ~~the Patriot Act.~~Citib

Appears in 1 contract

Sources: Credit Agreement (Stage Stores Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the ~~following~~Initial Extension of Credit the following (except that, with respect to the deliveries and conditions specified in paragraph (C) of clause (iv) below, the Administrative Agent shall have received such deliveries and such conditions shall be satisfied as soon as possible, but in any event not later than 45 days following the Initial Extension of Credit), each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent (unless otherwise specified)~~ Lenders, and in sufficient copies (except for the Notes~~) in sufficient copies~~ ), for each Lender Party: (i) The Notes payable to the order of the Lenders to duly executed by the ~~extent requested pursuant to Section 2.16~~Borrower. (ii) A security agreement in substantially the form of ~~Exhibit D hereto~~ EXHIBIT E granting to the Administrative Agent, for the ratable benefit of the Lenders, a first priority security interest (subject only to Permitted Liens) in all of the personal property and assets of the Borrower and each Guarantor described in such Security Agreement (together with each other security agreement ~~and security agreement supplement~~ delivered pursuant to Section ~~5.01(j)~~5.13, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, ~~the “Security Agreement”~~each a "SECURITY AGREEMENT"), duly executed by the Borrower and each ~~Loan Party~~Guarantor, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsproper, duly ~~filed on or before the day of the Initial Extension of Credit~~ executed financing statements under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens~~ Liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,; (CB) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed ~~in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable~~ that name the Borrower or any other Loan Party as debtor, together with copies of such ~~other~~ financing statements,; (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,; (ED) evidence of the insurance required by the terms of the Security ~~Agreement naming~~ Agreement; (E) copies of the ~~Collateral~~ Assigned Agreements, if any, referred to in the Security Agreement, together with a consent to such assignments, if any, in substantially the form of Exhibit C to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Borrower; (F) certificates representing the Pledged Shares referred to in the Security Agreement, accompanied by undated stock powers executed in blank and irrevocable proxies; (G) in the case of the Borrower's Foreign Subsidiaries, all action necessary to allow the Administrative Agent to obtain a valid and enforceable, first priority, perfected security interest in 65% of the stock of each Foreign Subsidiary and a memorandum to the Administrative Agent from appropriate foreign counsel confirming that the Administrative Agent, on behalf of the ~~Lender~~ Secured Parties, ~~as additional insured~~ has obtained a valid and ~~loss payee with such responsible and reputable insurance companies~~ enforceable first priority perfected security interest in the relevant Pledged Stock or ~~associations, and~~ outlining the steps necessary to obtain a perfected security interest in ~~such amounts and covering such risks, as is satisfactory to~~ the ~~Administrative Agents and the Joint Lead Arrangers,~~ relevant Pledged Stock; and (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens~~ Liens and security interests created under the Security Agreement has been ~~taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Mosler Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an ~~Advance~~ Advance, of the Existing Issuing Bank to continue the Existing Letters of Credit under this Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of each Lender that has requested the ~~Lenders to the extent requested pursuant to Section 2.16~~same. (ii) ~~A security agreement in substantially the form of Exhibit D hereto (together~~ Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each applicable Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsand, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date~~ case of ~~the Initial Extension of Credit~~UCC searches, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed in ~~all~~ the jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Part A of Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset, (v) As to each Borrowing Base Asset: (A) the most recently prepared land survey of such Borrowing Base Asset, prepared by a duly licensed and registered land surveyor, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and adversely affect the value or operation of such property or are reasonably acceptable to the Administrative Agent, 74 (B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset, (C) an original of the Existing Qualified Mortgage and the related Existing Qualified Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01, (D) ~~evidence~~ a copy of an ALTA Owner’s Policy of Title Insurance of the ~~completion~~ Borrower or a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of the fee titleholder thereto and all ~~other recordings and filings~~ matters of ~~or with respect to~~ record as of the ~~Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby,~~date of such policy, and (E) ~~evidence~~ (1) a “Phase I” environmental assessment of ~~the insurance required~~ such Borrowing Base Asset, which report (i) has been prepared by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory an environmental engineering firm reasonably acceptable to the Administrative ~~Agents~~ Agent and (ii) is otherwise in form and substance reasonably acceptable to the ~~Joint Lead Arrangers~~Administrative Agent and (2) any other environmental assessments or similar reports relating to such Borrowing Base Asset, ~~and~~including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Borrowing Base Asset. For the avoidance of doubt, the parties hereby acknowledge that the items required to be delivered to the Administrative Agent pursuant to this Section 3.01(a)(v) shall not be required for the Borrowing Base Assets listed on Part A of Schedule II (not indicated with an asterisk) which qualify as Borrowing Base Assets (under and as defined in the loan documentation for the Other Facilities) immediately prior to the Effective Date. (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (ivvi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vvii) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such 75 Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (viviii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~ix) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan Party and its general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and its general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan Party and its general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan ~~Party~~Party and its general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~x) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, and of the general partner or managing member of such Loan Party, as applicable, authorized to sign each Loan Document to which it such Loan Party is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixxi) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer,~~ historical operating statements (if any), ~~or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated~~ for the year ending December 31, ~~2010~~2016, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma~~ in the 76 event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated ~~financial statements as~~ operations. (xii) Evidence that all insurance required to be maintained pursuant to the ~~Borrower~~ Loan Documents has been obtained and ~~its Subsidiaries~~ is in effect. (xiii) An opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, with respect to such matters (and ~~forecasts prepared by management~~ in substantially the form) as any Lender Party through the Administrative Agent may reasonably request. (xiv) An opinion of counsel for the Loan Parties reasonably satisfactory to the Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf of the ~~Borrower~~Lender Parties may reasonably request. (xv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Agent. (~~xii~~xvi) ~~A Notice~~ One or more Notices of Borrowing or a Notice of Issuance, as applicable, relating to the Initial Extension of Credit, each dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (~~xiii~~xvii) ~~Favorable opinions~~ A certificate signed by a Responsible Officer of ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~the Borrower, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for~~ dated the ~~Loan Parties~~Closing Date, stating that after giving effect to the Initial Extension of Credit, the Parent Guarantor shall be in ~~substantially~~ compliance with the ~~forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent ~~and~~ showing the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~computations used in determining compliance with such covenants. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries ~~the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~that directly or indirectly owns a Borrowing Base Asset, including the terms and conditions of the ~~charter~~charter and bylaws, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and~~ operating agreement, partnership agreement or other governing document of each ~~agreement or instrument relating to such structure or capitalization~~of them. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before and after giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2016. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to ~~have~~ result in a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) heretotransactions contemplated thereby. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Hersha Hospitality Trust)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the Administrative Agent~~ Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The ~~Notes~~ Note payable to the order of the ~~Lenders to the extent requested pursuant to Section 2.16.~~Lenders; (ii) A security agreement in substantially the form of Exhibit D F hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together ~~with~~with each of the following: (A) ~~certificates~~ Certificates representing ~~the~~ Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in ~~blank,~~blank (to the extent not previously delivered to the Collateral Agent under the Existing Agreement); (B) ~~acknowledgment~~ executed copies of proper financing statements, ~~duly~~ to be filed ~~on or before the day of the Initial Extension of Credit~~ under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence Evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby,; (ED) ~~evidence~~ Evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, Agreement; and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security ~~interests~~ interest created under the Security Agreement has been ~~taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ transactions contemplated by the Loan Documents 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~~ third-party approvals and consents, if any, with respect to the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the ~~State~~ state of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiv) A certificate of each Loan ~~Party,~~ Party signed on behalf of such Loan Party by its Chief Executive Officer or a ~~Responsible Officer~~Senior Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vi) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixvii) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements dated December 31, ~~2010~~2001, interim financial statements dated September 30, 2002, the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma consolidated~~ in the event the Lender Parties' due diligence review reveals material changes since such financial ~~statements~~ statements, as to of a later date within 45 days of the ~~Borrower and its Subsidiaries~~ day of the Initial Extension of Credit) and forecasts prepared by management of the Borrower, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on ~~an annual~~ a quarterly basis for ~~each year~~ the twelve months following the ~~Effective Date until the Termination Date. (xii) A Notice~~ day of ~~Borrowing or Notice of Issuance, as applicable, relating to~~ the Initial Extension of Credit. (~~xiii~~viii) ~~Favorable opinions~~ Evidence of ~~▇▇▇▇▇▇▇~~ insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agent, including, without limitation, business interruption insurance. (ix) Copies of all Material Contracts of each Loan Party and its Subsidiaries. (x) A favorable opinion of Hunton & ▇▇▇▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit H hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~b) ~~Evidence satisfactory to~~ At the time of the making of the initial Advances or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Administrative Agent and the ~~Joint Lead Arrangers that~~ Lenders shall have received a ~~nationally recognized Process Agent~~ certified copy of an order of the Bankruptcy Court in the form of Exhibit G (the "Interim Order") approving the Loan Documents and granting the Superpriority Claim status and the Liens described in Section 2.16 which Interim Order (i) shall have been ~~appointed~~ entered upon an application or motion of the Borrower and the Subsidiary Guarantors reasonably satisfactory in form and substance to the Administrative Agent, on such prior notice to such parties as ~~Process Agent~~ may in each case be reasonably satisfactory to the Administrative Agent, (ii) shall authorize extensions of credit in amounts satisfactory to the Administrative Agent, (iii) shall approve the payment by the Borrower and the Subsidiary Guarantors of all of the Fees referred to in Section 2.08(c), (iv) shall be in full force and effect, (v) shall have authorized the use by the Borrower and the Subsidiary Guarantors of any cash collateral in which any Existing Lender under ~~Section 8.12 hereof.~~the Existing Agreement may have an interest and shall have provided for the benefit of the Existing Lenders, as adequate protection for the use of such cash collateral and the priming contemplated thereby, for (A) a superpriority claim as contemplated by section 507(b) of the Bankruptcy Code immediately junior to the claims under section 364(c) (b1) ~~The Administrative~~ of the Bankruptcy Code held by the Agent and the ~~Joint Lead Arrangers shall be satisfied with~~ Lenders, (B) a Lien on the ~~corporate~~ Collateral having a priority immediately junior to the priming and ~~legal structure~~ other Liens granted in favor of the Agent and ~~capitalization~~ the Lenders hereunder and under the other Loan Documents, (C) the current monthly payment to the Existing Lenders under the Existing Agreement of ~~each Loan Party~~ interest (and ~~each~~ the payment of ~~its Subsidiaries~~ all interest and fees that are accrued and unpaid on the ~~Equity Interests in which Subsidiaries are being pledged~~ Petition Date) at the applicable non-default rates provided for pursuant to the ~~Loan Documents~~Existing Agreement and in effect on the Petition Date (which payments and pricing options shall be without prejudice to the rights of any Existing Lender or letter of credit issuer to assert a claim for the payment of additional interest calculated at any other applicable rate of interest, or on any other basis, set forth in the Existing Agreement), (D) the payment on a current basis of the fees and disbursements of respective professionals (including, but not limited to, the fees and disbursements of counsel and internal and third-party consultants, including financial consultants and auditors) for the ~~terms~~ Pre-Petition Agent (including the payment on the Effective Date or as soon thereafter as is practicable of any unpaid pre-petition fees and ~~conditions~~ expenses) and the continuation of the ~~charter~~payment to the Pre-Petition Agent on a current basis of the administration and collateral agent fees that are provided for under the Existing Agreement and (E) the payment to the Existing Lenders, ~~bylaws~~ after compliance with Section 2.06(b) of any Remaining Reduction Amount, and ~~each class~~ (vi) shall not have been stayed, reversed, modified or amended in any respect; and, if the Interim Order is the subject of ~~Equity Interest~~ a pending appeal in ~~each~~ any respect, neither the making of such Advances nor the issuance of such Letter of Credit nor the performance by any of the Borrower or the Subsidiary Guarantors of any of their respective obligations hereunder or under the Loan ~~Party and each such Subsidiary and~~ Documents or under any other instrument or agreement referred to herein shall be the subject of ~~each agreement or instrument relating to such structure or capitalization~~a presently effective stay pending appeal. (c) All ~~Equity Interests~~ of the ~~Guarantors~~ "first day orders" entered by the Bankruptcy Court at the time of the commencement of the Cases shall be ~~owned by~~ satisfactory in form and substance to the ~~Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents~~Administrative Agent. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since ~~December 31, 2010~~the Petition Date. (fe) ~~There~~ Except for the Cases, there shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably be expected to have a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any~~ Loan ~~Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto~~Document. (gf) All governmental and ~~third~~ third-party consents and approvals necessary in connection with the ~~Transaction~~ Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transactioneffect (other than as set forth on Schedule 4.01(d)). (hg) The Borrower shall have paid all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the ~~Lender Parties)~~Administrative Agent) for which the Borrower has received an invoice. (h) The Administrative Agent and the Lenders shall have received, and the Administrative Agent shall have approved, the Final Budget and the Financial Forecasts Report from the Borrower and the Subsidiary Guarantors. (i) ~~The Refinancing shall have been consummated or~~ Each of the Non-filing Subsidiaries shall be ~~consummated or concurrently consummated with the Effective Date, all advances and other amounts owing~~ Subsidiary Guarantors under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedAgreement. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (Ntelos Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an ~~Advance~~ Advance, of the Existing Issuing Bank to continue the Existing Letters of Credit under this Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of each Lender that has requested the ~~Lenders to the extent requested pursuant to Section 2.16~~same. (ii) ~~A security agreement in substantially the form of Exhibit D hereto (together~~ Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each applicable Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statementsand, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date~~ case of ~~the Initial Extension of Credit~~UCC searches, listing ~~the financing statements referred to in clause (B) above and~~ all ~~other~~ effective financing statements filed in ~~all~~ the jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Part A of Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset, (v) As to each Borrowing Base Asset: (A) the most recently prepared land survey of such Borrowing Base Asset, prepared by a duly licensed and registered land surveyor, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and 65 (B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset, (C) an original of the Existing New York Mortgage and the related Existing New York Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01, (D) ~~evidence~~ a copy of an ALTA Owner’s Policy of Title Insurance of the ~~completion~~ Borrower or a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of the fee titleholder thereto and all ~~other recordings and filings~~ matters of ~~or with respect to~~ record as of the ~~Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby,~~date of such policy, and (E) ~~evidence~~ (1) a “Phase I” environmental assessment of ~~the insurance required~~ such Borrowing Base Asset, which report (i) has been prepared by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory an environmental engineering firm reasonably acceptable to the Administrative ~~Agents~~ Agent and (ii) is otherwise in form and substance reasonably acceptable to the ~~Joint Lead Arrangers~~Administrative Agent and (2) any other environmental assessments or similar reports relating to such Borrowing Base Asset, ~~and (F) evidence that all other action~~ including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Borrowing Base Asset. For the avoidance of doubt, the parties hereby acknowledge that the ~~Joint Lead Arrangers may deem necessary or desirable~~ items required to be delivered to the Administrative Agent pursuant to this Section 3.01(a)(v) shall not be required for the Borrowing Base Assets listed on Part A of Schedule II (not indicated with an asterisk) which qualify as Borrowing Base Assets (under and as defined in ~~order~~ the Existing Agreement) immediately prior 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)Effective Date. (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (ivvi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vvii) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (viviii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~ix) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan Party and its general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and its general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan Party and its general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan ~~Party~~Party and its general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~x) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, and of the general partner or managing member of such Loan Party, as applicable, authorized to sign each Loan Document to which it such Loan Party is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixxi) ~~Certified copies of each of the Related Documents~~Such financial, ~~duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments~~ business and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer,~~ historical operating statements (if any), ~~or other Responsible Officer if none. (xi) Audited~~ audited annual financial statements ~~dated December 31, 2010~~for the year ending 2012, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma~~ in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated ~~financial statements as~~ operations. (xii) Evidence that all insurance required to be maintained pursuant to the ~~Borrower~~ Loan Documents has been obtained and ~~its Subsidiaries~~ is in effect. (xiii) An opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, with respect to such matters (and ~~forecasts prepared by management~~ in substantially the form) as any Lender Party through the Administrative Agent may reasonably request. (xiv) An opinion of counsel for the Loan Parties reasonably satisfactory to the Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf of the ~~Borrower~~Lender Parties may reasonably request. (xv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative ~~Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Agent. (~~xii~~xvi) ~~A Notice~~ One or more Notices of Borrowing or a Notice of Issuance, as applicable, relating to the Initial Extension of Credit, each dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (~~xiii~~xvii) ~~Favorable opinions~~ A certificate signed by a Responsible Officer of ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~the Borrower, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for~~ dated the ~~Loan Parties~~Closing Date, stating that after giving effect to the Initial Extension of Credit, the Parent Guarantor shall be in ~~substantially~~ compliance with the ~~forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence~~ covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent ~~and~~ showing the ~~Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~computations used in determining compliance with such covenants. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries ~~the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~that directly or indirectly owns a Borrowing Base Asset, including the terms and conditions of the ~~charter~~charter and bylaws, ~~bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and~~ operating agreement, partnership agreement or other governing document of each ~~agreement or instrument relating to such structure or capitalization~~of them. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ed) Before and after giving effect to the ~~Transaction~~transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2012. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to ~~have~~ result in a Material Adverse Effect ~~other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)~~ or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) heretotransactions contemplated thereby. (gf) All governmental and third party consents and approvals necessary in connection with the ~~Transaction~~ transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; , and no law or regulation shall be applicable in the reasonable judgment of the ~~Joint Lead Arrangers and the Administrative Agent, in each case~~ Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~transactions contemplated by the Loan Documents. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Hersha Hospitality Trust)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the ~~Lenders to the extent requested pursuant to Section 2.16~~Lenders. (ii) A An amended and restated security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to ~~therein~~ therein, accompanied by undated stock powers executed in ~~blank~~ blank, and instruments evidencing the Pledged Debt referred to therein, indorsed in blank, (B) ~~acknowledgment~~ executed copies of ~~proper~~ Uniform Commercial Code financing statements, ~~duly~~ or amendments thereto, to be filed ~~on or before the day of the Initial Extension of Credit~~ under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A An amended and restated guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary Guaranty”"), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and the other transactions contemplated by the Loan Documents 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 Transaction and the other transactions contemplated by the Loan Documents 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 ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the ~~State~~ state of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction ~~reasonably requested by the Joint Lead Arrangers~~in which a Loan Party has qualified as a foreign corporation, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a such Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such ~~State~~ state and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible ~~Officer~~Officer of such Loan Party, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ 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 date of the ~~Effective Date~~Initial Extension of Credit or, if the bylaws of such Loan Party are unchanged from the bylaws previously provided to the Administrative Agent in connection with the Existing Credit Agreement, a statement so certifying, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, or, if the Related Documents are unchanged from the Related Documents provided to the Administrative Agent in connection with the Existing Credit Agreement, a statement so certifying, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (x) Certificates, in substantially the form of Exhibit FG hereto, respectively, attesting to the Solvency of each Loan Party ~~individually and together with its Subsidiaries, taken as a whole,~~ before and after giving effect to the ~~Transaction~~Transaction and the other transactions contemplated by the Loan Documents, from its ~~Chief~~ Principal Financial Officer~~, if any, or other Responsible Officer if none~~. (xi) ~~Audited~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, ~~2010~~2000, and interim financial statements dated the end of the most recent fiscal quarter for which financial statements are ~~available~~available (or, ~~pro forma consolidated~~ in the event the Lender Parties' due diligence review reveals material changes since such financial ~~statements~~ statements, as ~~to the Borrower and its Subsidiaries and forecasts prepared by management~~ of a later date within 45 days of the ~~Borrower, in form and substance satisfactory to~~ date of the ~~Administrative Agent and the Joint Lead Arrangers,~~ Initial Extension of ~~balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Credit). (xii) ~~A Notice~~ Evidence of ~~Borrowing~~ insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or ~~Notice of Issuance~~associations, and in such amounts and covering such risks, as ~~applicable, relating~~ is satisfactory to the ~~Initial Extension of Credit~~Lender Parties. (xiii) ~~Favorable opinions~~ Certified copies of ~~▇▇▇▇▇▇▇~~ all Material Contracts of each Loan Party and its Subsidiaries as the Administrative Agent shall request. (xiv) A favorable opinion of King & ~~▇▇▇▇▇▇▇~~Spalding, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~xv) ~~Evidence satisfactory~~ A favorable opinion of Meyer, Suozzi, English & Klein, P.C., Blank Rome Comisky & McCauley LLP, Osborn Mal▇▇▇▇, P.A., and Cohen Mo▇▇ ▇▇▇, lo▇▇▇ ▇▇▇▇sel to ▇▇▇ ▇▇▇▇▇▇ ▇▇rties in New York, New Jersey and Pennsylvania, Arizona, and Virginia, respectively, in substantially the forms of Exhibits F-2, F-3, F-4, and F-5, hereto, respectively, and as to such other matters as any Lender Party through the Administrative Agent ~~and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof~~may reasonably request. (b) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied ~~with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~that, ~~including the terms and conditions~~ upon application of the ~~charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests~~ proceeds of the ~~Guarantors shall be owned by the Borrower or one or more~~ Initial Extension of ~~the Borrower’s Subsidiaries~~Credit, ~~in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that~~ all Existing Debt, other than the Debt identified on Schedule 4.01(s) hereto (the "Surviving Debt"), has been ~~prepaid~~repaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (~~e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f~~c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the ~~Transaction~~Transaction or the other transactions contemplated by the Loan Documents, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gd) All governmental and third party consents and approvals necessary in connection with the Transaction and the other transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; all applicable waiting periods in connection with the Transaction and the other transactions contemplated by the Loan Documents shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the other transactions contemplated by the Loan Documents or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (he) The Borrower shall have ~~paid~~ paid, or shall pay with the proceeds of the Initial Extension of Credit, all accrued fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Americhoice Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the ~~Lenders to the extent requested pursuant to Section 2.16~~Lenders. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the Joint Lead Arrangers may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangers, and (F) evidence that all other action that the Joint Lead Arrangers may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to ~~Section 5.01(j~~Sections 5.01(m) or 5.02(k), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Amended and Restated Subsidiary Guaranty”"), duly executed by each ~~Subsidiary~~ Guarantor. (iii) Ship Mortgages and supplements to existing Ship Mortgages, as the Collateral Agent may determine is necessary, for each Eligible Vessel and Barge listed on Schedule XI hereto, together with evidence that each such Ship Mortgage, together with any such supplement, has been duly recorded and is in full force and effect. (iv) Assignments of Insurances for each Eligible Vessel and Barge listed on Schedule XI hereto. (v) Assignments of Freights and Hires for each Eligible Vessel and Barge listed on Schedule XI hereto. (vi) Copy of the most recent appraisal of the value (as determined in accordance with the appraisal procedures set forth in the Ship Mortgages) required to be delivered under the terms of the Existing Credit Agreement of each Eligible Vessel and Barge listed on Schedule XI hereto by an appraiser acceptable to the Administrative Agent. (vii) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the ~~Transaction~~ Agreement and each other 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 ~~Transaction~~ Agreement and each Loan Document to which it is or is to be a party. (vviii) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that ~~(1)~~ such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, ~~(2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate~~ and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (viiix) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v),~~ 3.01(a)(viii) and (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(vii) were adopted and on the date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit~~, that constitutes a Default~~. (~~viii~~x) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party 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. (ixxi) ~~Certified copies~~ Evidence of ~~each of~~ insurance naming the ~~Related Documents~~Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, ~~duly executed~~ and in such amounts and covering such risks as is required by the ~~parties thereto~~ Ship Mortgages and ~~in form and substance~~ as is satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit. (xiii) ~~Favorable opinions~~ A favorable opinion of ~~▇▇▇▇▇▇▇~~ Gilmartin, Poster & ▇▇Shafto, counsel for the Loan Pa▇▇▇▇▇, ~~LLP and ▇▇▇▇▇▇▇~~▇▇ ~~Traurig LLP counsel for the Loan Parties, in~~ substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit D hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (~~b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued and unpaid fees of ~~the Joint Lead Arrangers,~~ the Agents and the Lender Parties which are due and payable on or prior to the Restatement Effective Date and all accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent) and ~~local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date,~~ all ~~advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the~~ letters of credit issued thereunder (except Existing Letters of Credit) shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Crowley Maritime Corp)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) A certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit G (including the Intercreditor Arrangement annexed as an exhibit thereto) (the "Interim Order") and the Interim Order shall be in full force and effect and shall not have been vacated, reversed, modified or amended and there shall be no stay of the performance of any obligation of the Borrower or any of the Loan Parties. The parties hereto acknowledge that the foregoing shall not preclude the entry of any order of the Bankruptcy Court approving or authorizing an amendment or modification of this Agreement or any other Loan Document or the Interim Order permitted by Section 9.01 which amendment of modification shall be acceptable to the Lenders whose consent is required to approve such amendment or modification under Section 9.01. (ii) The Notes payable to the order of the Lenders to the extent requested ~~pursuant to~~ in accordance with Section 2.16. (iiiii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Security Agreement”"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ 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 completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~Liens~~ security interest created ~~thereby~~thereunder, (EF) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent, on behalf~~ Agreement, (G) copies of the ~~Lender Parties~~Assigned Agreements referred to in the Security Agreement, ~~as additional insured and loss payee~~ together with a consent to such ~~responsible and reputable insurance companies or associations~~assignment, ~~and~~ in ~~such amounts and covering such risks, as is satisfactory~~ substantially the form of Exhibit B to the ~~Administrative Agents and~~ Security Agreement, duly executed by each party to such Assigned Agreements other than the ~~Joint Lead Arrangers, and~~Loan Parties, (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (~~iii~~iv) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “"Subsidiary Guaranty”"), duly executed by each Subsidiary Guarantor. (ivv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the transactions contemplated by the Transaction Documents and each ~~Loan~~ Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate or other action and governmental and other third party approvals and consents, if any, with respect to the transactions contemplated by the Transaction Documents and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvi) A copy of a certificate of the Secretary of State of the jurisdiction of ~~incorporation or~~ organization of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in ~~such Secretary’s~~ its office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in ~~such Secretary’s~~ its office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C3) such Loan Party is duly ~~incorporated or~~ organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or~~ organization. (vivii) A copy of a certificate of the Secretary of State of each ~~jurisdiction reasonably requested by~~ of the ~~Joint Lead Arrangers~~States listed on Schedule 3.01(a)(vii), dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, with respect to each Loan Party as listed on Schedule 3.01(a)(vii), stating that a such Loan Party is duly qualified and in good standing as a foreign ~~entity in such State~~ corporation and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~viii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party ~~as a corporation or limited liability company organized~~ under the laws of the jurisdiction of its ~~incorporation or~~ organization, and the absence of any proceeding for the dissolution or liquidation of such Loan ~~Party,~~ Party (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~ix) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixx) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall request. (xxi) ~~Certificates~~Such financial, ~~in substantially the form of Exhibit F, attesting to the Solvency of~~ business and other information regarding each Loan Party ~~individually~~ and ~~together~~ its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with ~~its Subsidiaries~~employees, ~~taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited~~ unaudited annual financial statements dated ~~December~~ January 31, ~~2010~~2000, interim monthly financial statements ~~dated~~ through the end of ~~the most recent fiscal quarter for which financial statements are available~~April 30, 2000, pro forma ~~consolidated~~ financial statements as to the ~~Borrower and its Subsidiaries~~ Parent Guarantor and forecasts prepared by management of the ~~Borrower~~Parent Guarantor, in form and substance satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties, of balance sheets, income statements and cash flow statements on a monthly basis following the day of the Initial Extension of Credit through the end of Fiscal Year 2000 and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (xii) A letter, in form and substance satisfactory to the Administrative Agent, from the Parent Guarantor to PricewaterhouseCoopers LLC, its independent certified public accountants, advising such accountants that the Agents and the Lender Parties have been authorized to exercise all rights of the Parent Guarantor to request such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to the Parent Guarantor and its Subsidiaries and requesting such accountants to comply with any reasonable request of any Agent or any Lender Party for such information. (xiii) Evidence of insurance naming the Collateral Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance. (xiv) Certified copies of each employment agreement and other compensation arrangement in excess of $100,000 with each executive officer of any Loan Party or any of its Subsidiaries (the "Employment Agreements"). (xv) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of ~~Credit~~Credit which shall reflect an Excess Availability in an amount not less than $45,000,000. (~~xiii~~xvi) ~~Favorable opinions~~ A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Loan Parties, in substantially the form of Exhibit H-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xvii) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇▇ ~~Traurig LLP~~ & ▇▇▇▇▇▇▇▇, a Professional Limited Liability Corporation, local counsels for the Loan Parties, each in substantially the form of Exhibit H-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xviii) A favorable opinion of Jenkens & ▇▇▇▇▇▇▇▇▇, special bankruptcy counsel for the Loan Parties, in substantially the ~~forms~~ form of ~~respectively Exhibits G-1 and G-2~~ Exhibit H-3 hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv~~b) ~~Evidence~~ All proceedings taken in connection with the execution of this Agreement, the making of the Advances, the issuance of any Letter of Credit, and the execution and delivery of all other Loan Documents and all documents and papers relating thereto shall be satisfactory to the Administrative Agent and ~~the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b)~~ its counsel. The Administrative Agent and its counsel shall have received copies of such documents and papers as the ~~Joint Lead Arrangers~~ Administrative Agent or its counsel may reasonably request in connection therewith, in all form and substance satisfactory to the Administrative Agent and its counsel. (c) The First Day Orders shall be reasonably satisfactory in form and substance to the Administrative Agent, including, without limitation, (i) an order providing for the continuation of the pre-Filing Date cash management system of the Borrower and the Guarantors with Citibank, N.A., as modified in accordance with the terms of this Agreement, (ii) an order terminating the Receivables Program and authorizing the transfer of ownership of the Receivables under the Receivables Program to the Borrower free and clear of any and all Liens, (iii) an order authorizing the purchase and sale of Receivables pursuant to the Credit Card Program, and (iv) an order transferring any Lien granted in connection with the Pre-Petition 2000 Credit Agreement to the Collateral Agent for the ratable benefit of the Secured Parties. (d) The Lender Parties shall be satisfied with the ~~corporate and~~ legal structure and capitalization of each Loan Party and each of its Subsidiaries the ~~Equity Interests in~~ capital stock of which Subsidiaries ~~are~~ is being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of ~~Equity Interest in~~ capital stock or other equity interest of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (de) The ~~Administrative Agent and the Joint Lead Arrangers~~ Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 4.01(t) hereto (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated and that all such Surviving Debt shall be on terms and conditions reasonably satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ef) Before giving effect to the ~~Transaction~~transactions contemplated by the Transaction Documents and except as disclosed in the Parent Guarantor's annual report on Form 10-K for the Fiscal Year ended January 31, 2000 or otherwise disclosed to the Lender Parties in writing prior to the date hereof, there shall have occurred no Material Adverse Change since ~~December 31~~February 1, ~~2010~~2000 (other than the commencement of the Cases). (fg) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any ~~court~~Governmental Authority, ~~governmental agency or arbitrator~~ that (i) ~~could~~ would be reasonably ~~be expected~~ likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “"Disclosed Litigation”") and the commencement of the Cases or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the ~~Transaction~~transactions contemplated by the Transaction Documents, and there shall have been no adverse change in the status, or financial effect ~~on,~~ on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (gh) All ~~governmental~~ Governmental Authorizations and third party consents and approvals necessary in connection with the transactions contemplated by the Transaction Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~transactions contemplated by the Transaction Documents or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them other than the entry by the Bankruptcy Court of the Interim Order or the Final Order, as applicable. (hi) The Lender Parties shall have completed a due diligence investigation of the Loan Parties and their Subsidiaries in scope (including, without limitation, a field examination and third party appraisal of inventory), and with results, satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Parent Guarantor and its Subsidiaries as they shall have requested. (j) The Borrower shall have paid all accrued fees of the ~~Joint Lead Arrangers, the~~ Agents and the Lender Parties and all reasonable accrued expenses of the ~~Joint Lead Arrangers~~ Agents (including the reasonable accrued fees and expenses of counsel to the ~~Joint Lead Arrangers~~ Administrative Agent and local counsel to the Lender Parties). (ik) The ~~Refinancing~~ Lender Parties shall be satisfied with the Parent Guarantor's and the Borrower's management. (l) No objection shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable filed to the ~~Paying~~ entry of the Interim Order by the Pre-Petition Agent ~~(it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting~~ or any ~~Debt under the Existing Credit Agreement shall have been fully released and terminated~~Pre-Petition Lender. (jm) ~~The Lenders shall have received all documentation~~ All obligations under the Pre-Petition 2000 Agreement and ~~other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations~~the Receivables Program shall, ~~including the Patriot Act.~~in each case, be repaid a

Appears in 1 contract

Sources: Debtor in Possession Credit Agreement (Stage Stores Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender Party 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to ~~the Joint Lead Arrangers and~~ the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes~~ If requested by a Lender, a Note payable to the order of ~~the Lenders to the extent requested pursuant to Section 2.16~~such Lender. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by ~~each~~ the Loan ~~Party~~Parties, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank, (B) ~~acknowledgment~~ executed copies of proper financing ~~statements, duly filed on or before the day of the Initial Extension of Credit~~ statements for filing under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (B) above that name ~~any Loan Party~~ the Borrower as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby, insurance (Eif any) ~~evidence of the insurance~~ required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead ArrangersAgreement, and (FE) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may reasonably deem necessary ~~or desirable~~ 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers of each Loan Party~~ Borrower approving the Transaction 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 Transaction and each Loan Document to which it is or is to be a party. (viv) A copy of a certificate of the Secretary of State (or equivalent governmental authority) of the jurisdiction of incorporation ~~or organization~~ of ~~each Loan Party~~the Borrower, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles~~ charter of ~~incorporation or articles of organization, as~~ the ~~case may be (“Organizational Documents”) of such Loan Party~~ Borrower and each amendment thereto on file in the office of such ~~Secretary’s office~~ Secretary of State (or such governmental authority) and (B) that (1) such amendments are the only amendments to ~~such Loan Party’s Organizational Documents~~ the Borrower's charter on file in ~~such Secretary’s~~ its office, (2) ~~if applicable, such Loan Party~~ the Borrower has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) ~~such Loan Party~~ the Borrower is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (viv) A copy of a certificate of the Secretary of State (or equivalent governmental authority) of each jurisdiction ~~reasonably requested by~~ in which the ~~Joint Lead Arrangers~~Borrower is qualified or licensed as a foreign corporation, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that ~~a Loan Party~~ the Borrower is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~vi) A certificate of ~~each Loan Party~~the Borrower, signed on behalf of ~~such Loan Party~~ the Borrower by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter (or similar constitutive document) of ~~such Loan Party~~ the Borrower since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(iv), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of ~~such Loan Party~~ the Borrower as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of ~~such Loan Party~~ the Borrower as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of ~~such Loan Party~~the Borrower, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~vii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of ~~each Loan Party~~ the Borrower certifying the names and true signatures of the officers of ~~such Loan Party~~ the Borrower 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 F, attesting to the Solvency of the Borrower, individually and together with its Subsidiaries, taken as a whole, immediately before and immediately after giving effect to the Transaction, from its Chief Financial Officer. (ix) ~~Certified copies~~ Such financial, business and other information regarding the Borrower and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available. (x) A Notice of Borrowing relating to the Initial Extension of Credit. (xi) A certified copy of each of the ~~Related~~ Refinancing Documents, duly executed by the parties thereto and in the form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent ~~or the Joint Lead Arrangers~~ shall reasonably request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A ~~Notice~~ favorable opinion of ~~Borrowing or Notice of Issuance~~Sullivan & Cromwell, ~~as applicable~~counsel for the Loan Parties, ~~relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and~~ in ▇▇▇▇▇▇▇▇ial▇▇ ~~Traurig LLP counsel for the Loan Parties, in substantially the forms~~ ▇▇▇ ▇orm of ~~respectively Exhibits G-1 and G-2~~ Exhibit H hereto and as to such other matters as any Lender Party through the Administrative Agent ~~or the Joint Lead Arrangers~~ may reasonably request. (~~xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (~~b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the ~~Administrative Agent and the Joint Lead Arrangers~~Lender Parties. (ec) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, ~~2010~~2000. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting ~~any Loan Party~~ the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the ~~“Disclosed Litigation”~~"DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of any ~~Transaction~~ Loan Document or the consummation of the ~~Transaction,~~ Transaction and there shall have been no material adverse change in the status, or financial effect on, ~~any Loan Party~~ the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (ge) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties) and shall remain in ~~effect~~effect (other than any such consents or approvals the absence of which, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect); all applicable waiting periods in connection with the Transaction shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the ~~Joint Lead Arrangers and the Administrative Agent~~Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Transaction~~Transaction or the rights of the Borrower or its Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (hf) The Lender Parties shall be satisfied with the terms and conditions of the Subordinated Notes. On the Effective Date, the Borrower shall have received at least $250,000,000 in cash proceeds from the issuance of the Subordinated Notes. The Borrower shall have used the proceeds of the Subordinated Notes, together with any cash on the balance sheet of the Borrower, or shall use all such amounts simultaneously with the Initial Extension of Credit under the Loan Documents to finance, in part, the Refinancing and related costs and expenses. (g) The Borrower shall have paid or caused to be paid all accrued fees and expenses of the ~~Joint Lead Arrangers~~Administrative Agent, the ~~Agents~~ Lead Arranger and the Lender Parties ~~and all accrued expenses of the Joint Lead Arrangers~~ (including the accrued fees and reasonable expenses of counsel to the ~~Joint~~ Administrative Agent and the Lead ~~Arrangers and local counsel to the Lender Parties~~Arranger). (ih) ~~The Refinancing~~ All of the Equity Interests of each of the Borrower's Subsidiaries shall be owned by the Borrower or one or more of the Borrower's Subsidiaries (except to the extent such Equity Interests are required by the laws of the jurisdiction of incorporation of such Subsidiary to be held by any third party solely for the purpose of complying with the laws for the incorporation or formation of such Subsidiary), in each case free and clear of any Lien, other than the Liens created under the Loan Documents; the Lenders shall have a valid and perfected first priority Lien and security interest in such Equity Interests (or 65% of such Equity Interests in a subsidiary that is a CFC) and in the other Collateral to the extent contemplated by the Loan Documents; all filings, recordations and searches necessary or desirable in connection with such Liens and security interests shall have been ~~consummated or shall be consummated or concurrently consummated with the Effective Date,~~ duly made; and all ~~advances~~ filing and ~~other amounts owing under the Existing Credit Agreement~~ recording fees and taxes shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminatedduly paid. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Key3media Group Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Arranger and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Notes payable to the order of the Lenders to the extent requested pursuant to Section 2.16. (ii) A security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the ~~“Security Agreement”~~"SECURITY AGREEMENT"), duly executed by each Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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 requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent~~Agreement, ~~on behalf of the Lender Parties, as additional insured and loss payee~~ together with ~~such responsible and reputable~~ an insurance ~~companies or associations, and in such amounts and covering such risks, as is~~ broker's letter satisfactory to the Administrative ~~Agents~~ Agent as to the customary nature and adequacy of the ~~Joint Lead Arrangers~~Borrower's insurance, (F) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit C to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, (G) the Account Control Agreements referred to in the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and (FH) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the ~~“Subsidiary Guaranty”~~"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor. (iv) Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit F hereto and covering the properties listed on Schedules 4.01(w), 4.01(x)(i) and 4.01(x)(ii) hereto (together with each other mortgage delivered pursuant to Section 5.01(j), in each case as amended, the "Mortgages"), duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly recorded on or before the day of the Initial Extension of Credit in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid, (B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amount acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the Initial Extension of Credit, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (D) estoppel and consent agreements, in form and substance satisfactory to Administrative Agent, executed by (1) each of the lessors of the leased real properties listed on Schedule 4.01(x)(i) hereto, along with (x) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (y) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in Administrative Agent's reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (z) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to Administrative Agent and (2) each of the tenants of the leased properties listed on Schedule 4.01(x)(ii) hereto, (E) evidence of the insurance required by the terms of the Mortgages, (i) the results of a recent search, by a Person satisfactory to Administrative Agent, of all effective fixture filings and all judgment and tax lien filings which may have been made with respect to any of the properties listed on Schedules 4.01(w), 4.01(x)(i) and 4.01(x)(ii), together with copies of all such filings disclosed by such search, and (ii) UCC-3 termination statements and other instruments duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate or remove of record any effective fixture filings or judgment or tax lien filings disclosed in such search (other than any such filings comprising Permitted Liens), and (G) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may deem necessary or desirable and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (v) An intellectual property security agreement in substantially the form of Exhibit F to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (vi) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or of the members or managers~~ Directors of each Loan Party approving the Transaction and each ~~Loan~~ Transaction 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 Transaction and each ~~Loan~~ Transaction Document to which it is or is to be a party. (vvii) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation ~~or organization~~ of each Loan Party, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the ~~charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”)~~ charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party~~’s Organizational Documents~~ 's charter on file in such Secretary’s 's office, (2) ~~if applicable,~~ such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated ~~or organized~~ and in good standing or presently subsisting under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (viviii) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the ~~Joint Lead Arrangers~~Administrative Agent, dated reasonably near the ~~Effective Date~~date of the Initial Extension of Credit, stating that a Loan Party is duly qualified and in good standing as a foreign ~~entity~~ corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~ix) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a ~~Responsible Officer~~Vice President and its Secretary or any Assistant Secretary, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section ~~3.01(a)(v~~3.01(a)(viii), (B) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of such Loan Party as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(vii) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due ~~incorporation/organization~~ incorporation and good standing or valid existence of such Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~x) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each ~~Loan~~ Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ixxi) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the ~~Joint Lead Arrangers~~ Arranger shall request. (xxii) Certificates, in substantially the form of Exhibit FG, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer~~, if any, or other Responsible Officer if none~~. (xixiii) Audited annual financial statements dated December 31, ~~2010~~2000, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the ~~Joint Lead Arrangers~~Arranger, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the day of the Initial Extension of Credit and on an annual basis for each year ~~following the Effective Date~~ thereafter until the Termination Date. (~~xii~~xiv) An environmental assessment report, in form and substance satisfactory to the Administrative Agent, the Arranger and the Lender Parties, from an environmental consulting firm acceptable to the Arranger, as to any hazards, costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries may be subject, the amount and nature of which and the Borrower's plans with respect to which shall be acceptable to the Lender Parties, together with evidence, in form and substance satisfactory to the Lender Parties, that all applicable Environmental Laws shall have been complied with. To the extent that either such report or any other information that may become available to the Lender Parties shall disclose any hazards, costs or liabilities under Environmental Laws or otherwise that the Administrative Agent and the Arranger deem material, the Administrative Agent and the Arranger shall be satisfied that such hazards, costs or liabilities were adequately reflected in the Company's financial reserves shown on the financial statements included in the Information Memorandum or that, to the extent not so reflected, the Borrower has made adequate provision for such hazards, costs or liabilities. (xv) Evidence of insurance naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agent and the Arranger. (xvi) Certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries as the Arranger or the Administrative Agent shall request. (xvii) A certificate of the Chief Financial Officer of the Borrower, in form and substance satisfactory to the Arranger and the Administrative Agent, demonstrating that the aggregate of (i) 85% of the book value of the accounts receivable, (ii) 50% of the book value of the inventory and (iii) 50% of the book value of the property, plant and equipment (in each case as such book value is determined in accordance with GAAP) of the Loan Parties exceeds the sum of (x) the aggregate principal amount outstanding under the Term Facilities and (y) the Revolving Credit Facility. (xviii) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries as the Arranger or the Administrative Agent shall request. (xix) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (~~xiii~~xx) Favorable opinions of ~~▇▇▇▇~~Barrett & McNagny, LLC and Latham & Watkins, counsel for ▇▇▇ & ▇▇an ▇▇▇▇▇▇▇, ~~LLP and~~ in subst▇▇▇▇▇▇~~▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially~~ ly the forms of respectively Exhibits ~~G-1~~ H-1 and ~~G-2~~ H-2 hereto and as to such other matters as the Administrative Agent or the ~~Joint Lead Arrangers~~ Arranger may reasonably request. (~~xiv~~xxi) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization A favorable opinion of ~~each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents~~Barrett & McNagny, ~~including the terms and conditions of the charter~~LLC, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.Loan Partie▇ ▇▇ ▇▇ch jurisdiction wher

Appears in 1 contract

Sources: Credit Agreement (Steel Dynamics Inc)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of the Existing Issuing Bank to continue the Existing Letters of Credit under this Agreement or of any Issuing Bank to issue or continue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of ~~the Lenders to the extent~~ each Lender which has requested ~~pursuant to Section 2.16~~one. (ii) A An amended and restated security agreement in substantially the form of Exhibit D F hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented or otherwise modified from time to time,~~ the “Security Agreement”), duly executed by each Loan ~~Party~~Party that owns Borrowing Base Assets, together with: (A) ~~certificates representing~~ (I) with respect to each Guarantor that is not a Guarantor (as defined in the ~~Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B)~~ Existing Agreement), acknowledgment copies of proper UCC-1 financing statements and (II) with respect to each other Guarantor, acknowledgment copies of proper UCC-3 continuation financing statements, in each case, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to ~~perfect~~ perfect, protect and ~~protect~~ continue (if applicable) the first priority liens and security interests created under the ~~Security Agreement~~Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (CB) completed requests for ~~information~~information dated a recent date, ~~dated on or before~~ including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the ~~date~~ case of ~~the Initial Extension of Credit~~UCC searches, listing ~~the~~ all effective financing statements filed in the jurisdictions referred to in clause (BA) above and ~~all~~ in such other ~~effective financing statements filed in all~~ jurisdictions ~~that~~ specified by the ~~Joint Lead Arrangers may deem necessary or desirable~~ Administrative Agent that name any Loan Party as debtor, together with copies of such ~~other~~ financing statements, (DC) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) certified copies of the Management Agreements and all amendments thereto entered into on or before the Closing Date with respect to each Borrowing Base Asset; (E) ~~evidence of the insurance required~~ a subordination agreement executed and delivered by the ~~terms~~ property manager of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Administrative Agents and the Joint Lead Arrangerseach Borrowing Base Asset, and (F) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may reasonably deem necessary or desirable 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, ~~UCC-3~~ UCC termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) ~~A guaranty~~ (x) With respect to each New Borrowing Base Asset, deeds of trust, trust deeds and mortgages in substantially the form of Exhibit E G hereto and (y) with respect to each Existing Borrowing Base Asset, an amendment and restatement of the applicable Mortgage (as defined in the Existing Agreement) previously delivered for such Existing Borrowing Base Asset (in each case, with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) (together with each other ~~guaranty~~ deed of trust, trust deed and ~~guaranty supplement~~ mortgage delivered pursuant to Section 5.01(j), in each case as amended, ~~supplemented~~ the “Mortgages”), in each case duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered on or ~~otherwise modified from time~~ before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to ~~time~~create a valid first and subsisting Lien on the collateral described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities, (B) (I) with respect to each New Borrowing Base Asset, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies and (II) with respect to each Existing Borrowing Base Asset, either fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or endorsements (including date down endorsements) to the Mortgage Policies (as defined in the Existing Agreement) (collectively, the “~~Subsidiary Guaranty~~Mortgage Policies”), in each case in form and substance, with (if applicable) endorsements (including zoning endorsements where available) and in amount acceptable to the Administrative Agent, issued by a title insurer acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable, (C) For those Borrowing Base Assets for which a recent survey was not provided in connection with the Existing Agreement, American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Collateral Agent, showing, as to the Borrowing Base Assets, all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Collateral Agent, or existing surveys in lieu thereof so long as each such survey is accompanied by an affidavit of no-change, satisfactory to the Collateral Agent and sufficient for the applicable title insurer to eliminate all standard survey-related exceptions to the applicable Mortgage Policy, (D) engineering, soils, seismic, environmental and other similar reports as to the Borrowing Base Assets, in form and substance and from professional firms acceptable to the Administrative Agent, (E) estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each ~~Subsidiary Guarantor~~of the lessors of any Borrowing Base Assets subject to a Qualifying Ground Lease, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected Borrowing Base Asset, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent, (F) an Appraisal of each Borrowing Base Asset described in the Mortgages, (G) copies of all material licenses, permits and approvals, including, without limitation, all Healthcare Licenses relating to each Borrowing Base Asset and, if available, the certificate of occupancy for each Borrowing Base Asset, (H) a zoning report for each Borrowing Base Asset issued by Planning and Zoning Resources Corp. or another professional firm acceptable to the Administrative Agent, (I) copies of each Management Agreement, Qualifying Ground Lease, and all amendments thereto, entered into with respect to each of the Borrowing Base Assets, (J) copies of all leases (including, without limitation, all leases with Affiliates, but excluding all Tenancy Leases) and Material Contracts relating to each of the Borrowing Base Assets, (K) copies of all Liens on each of the Borrowing Base Assets, including, without limitation, any reciprocal easement agreements, easements and other items of record, (L) evidence of the successful completion of a vote by the Borrower’s shareholders approving the issuance of Equity Interests consisting of the common stock of the Borrower in connection with the FVE-SNH Restructuring, and (M) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or desirable and evidence that all other action that the Collateral Agent may reasonably deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (iv) This Agreement duly executed by the Loan Parties and the other parties thereto. (v) Certified copies of the resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers~~ Borrower on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the ~~Transaction~~ transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party 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 ~~Transaction~~ transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vvi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of ~~incorporation~~ incorporation, organization or ~~organization~~ formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the ~~Effective~~ Closing Date, ~~certifying~~ certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, ~~articles~~ certificate of ~~incorporation~~ limited partnership, limited liability company agreement or ~~articles~~ other organizational document of ~~organization~~such Loan Party, general partner or managing member, as the case may ~~be (“Organizational Documents”) of such Loan Party~~ be, and each amendment thereto on file in such Secretary’s ~~office and~~ office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party~~’s Organizational Documents~~ , general partner or managing member, as the case may be, on file in such Secretary’s office, (2) ~~if applicable,~~ such Loan ~~Party~~ Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly ~~incorporated~~ incorporated, organized or ~~organized~~ formed and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization~~formation. (vivii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably ~~requested by the Joint Lead Arrangers~~be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the ~~Effective~~ Closing Date, ~~stating~~ stating, with respect to each such Loan Party, general partner or managing member, that a such Loan ~~Party~~ Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign ~~entity~~ corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (~~vii~~viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan ~~Party~~ Party, general partner or managing member, as applicable, by its President or a Vice President (or other Responsible Officer) and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the ~~date of the Effective~~ Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the ~~Organizational Documents~~ constitutive documents of such Loan ~~Party~~ Party, general partner or managing member, as applicable, since the date of the ~~Secretary of State’s~~ certificate referred to in Section ~~3.01(a)(v~~3.01(a)(vi), (B) a true and correct copy of the ~~bylaws or~~ bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, ~~of such Loan Party~~ as in effect on the date on which the resolutions referred to in Section ~~3.01(a)(iv~~3.01(a)(v) were adopted and on the date of the ~~Effective Date~~Initial Extension of Credit, (C) the due incorporation/, organization or formation and good standing or valid existence of such Loan ~~Party~~ Party, general partner or managing member, as applicable, as a ~~corporation or~~ corporation, limited liability company or partnership organized under the laws of the jurisdiction of its ~~incorporation~~ incorporation, organization or ~~organization,~~ formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. Notwithstanding the foregoing, items (D) and (E) in the previous sentence may be certified in a separate officer’s certificate by the Treasurer and Chief Financial Officer of each Loan Party, or general partner or managing member (if any) of each Loan Party. (~~viii~~ix) A certificate of a the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan ~~Party~~ Party, or of the general partner or managing member 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. (ixx) ~~Certified copies~~ Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested. (xi) Evidence of ~~each~~ insurance (which may consist of binders or certificates of insurance) naming the ~~Related Documents~~Administrative Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, ~~duly executed by the parties thereto~~ and in ~~form~~ such amounts and ~~substance~~ covering such risks, as is satisfactory to the Lender Parties, ~~together with all agreements~~including, ~~instruments and other documents delivered in connection therewith as~~ without limitation, the ~~Administrative Agent or~~ insurance required by the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end terms of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent Security Agreement and the ~~Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date~~Mortgages. (xii) ~~A Notice~~ An opinion of ~~Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of~~ ▇▇▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇~~Worcester LLP, ~~LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP~~ New York counsel for the Loan Parties, with respect to the matters (and in substantially the ~~forms of respectively Exhibits G-1 and G-2~~ form) set forth in Exhibit E-1 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.as

Appears in 1 contract

Sources: Credit Agreement (Five Star Senior Living Inc.)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, 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 of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers and the~~ Administrative Agent (unless otherwise specified) and (except for the ~~Notes~~Notes and any certificated Equity Interest evidencing Equity Interest Collateral, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) ~~The Notes~~ A Note duly executed by the Borrower and payable to the order of ~~the Lenders to the extent requested pursuant to Section 2.16~~each Lender. (ii) ~~A security agreement~~ Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in ~~substantially~~ the ~~form~~ case of ~~Exhibit D hereto (~~UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with ~~each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Security~~ copies of such financing statements. (iii) This Agreement”), duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Schedule II, (v) A Security Agreement, duly executed by the Borrower, each Loan ~~Party~~Party that owns or leases Borrowing Base Assets and each Equity Pledgor, together with: (A) ~~certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment~~ copies of proper financing statements, ~~duly~~ to be filed ~~on or before the day of the Initial Extension of Credit~~ under the Uniform Commercial Code of all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests ~~created~~ (to the extent provided under the Security Agreement, subject to Permitted Liens) to the extent a created under the Collateral Documents, covering the Collateral described ~~in the Security Agreement~~therein, (~~C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (~~B) ~~above~~ the certificated Equity Interests evidencing the related Equity Interest Collateral and ~~all other effective financing statements filed in all jurisdictions that~~ stock powers and membership interest powers (as the ~~Joint Lead Arrangers~~ case may ~~deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements, (D~~be) ~~evidence of the completion of all other recordings and filings of or~~ with respect ~~to the Security Agreement that the Joint Lead Arrangers may deem necessary or desirable~~ thereto executed in ~~order to perfect~~ blank, all in form and protect the Liens created thereby, (E) evidence of the insurance required by the terms of the Security Agreement naming the Collateral Agent, on behalf of the Lender Parties, as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory substance acceptable to the Administrative ~~Agents and the Joint Lead Arrangers~~Agent, and (FC) evidence that all other action that the ~~Joint Lead Arrangers~~ Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests (to the extent provided under the Security Agreement, subject to Permitted Liens) created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, ~~UCC-3~~ UCC termination statements and landlords’ and bailees’ waiver and consent agreements). (iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, supplemented or otherwise modified from time to time, the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor. (iv) Certified copies of the resolutions of the board of directors or of the members or managers of each Loan Party approving the Transaction 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 Transaction 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 or organization of each Loan Party, dated reasonably near the Effective Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization. (vi) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Effective Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Effective Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Organizational Documents 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 and correct copy of the bylaws or operating agreement, as applicable, 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 date of the Effective Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (viii) A certificate of a Responsible Officer of each Loan Party 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. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Hersha Hospitality Trust)

Conditions Precedent to Initial Extension of Credit. The ~~effectiveness of this Amended and Restated Credit Agreement, and the~~ obligation of each Lender to make an Advance or of ~~any~~ the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with ~~such effectiveness or~~ the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the ~~Effective Date~~ day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Joint Lead Arrangers~~ Administrative Agent and the ~~Administrative Agent (unless otherwise specified)~~ Lenders, and in sufficient copies (except for the Notes~~) in sufficient copies~~ ), for each ~~Lender Party~~Lender: (i) The Notes payable to the order of the ~~Lenders to the extent requested pursuant to Section 2.16~~Lenders. (ii) One or more pledge agreements in form and substance satisfactory to the Administrative Agent (as hereafter amended, supplemented or otherwise modified from time to time, together with each other pledge agreement relating to securities delivered pursuant to Section 6.13, in each case individually and collectively, the "Pledge Agreement") pursuant to which not less than 65% of the issued and outstanding capital stock of each of the Borrower's Foreign Subsidiaries shall be pledged to the Administrative Agent as security for the Obligations, together with the certificates representing all shares pledged thereunder and undated stock powers executed in blank with respect thereto. (iii) A security agreement in ~~substantially~~ form and substance satisfactory to the ~~form of Exhibit D hereto~~ Administrative Agent (as hereafter amended, supplemented or otherwise modified from time to time, together with each other security agreement ~~and security agreement supplement~~ delivered pursuant to Section ~~5.01(j)~~6.13, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, ~~the “~~each a "Security Agreement”)") granting to the Administrative Agent, for the ratable benefit of the Lenders, a first priority security interest in all of the personal property and assets of the Borrower and its Domestic Subsidiaries (to the extent required by the Administrative Agent) and all proceeds thereof, whether now or hereafter arising or existing, and wherever located duly executed by ~~each Loan Party~~the Borrower, together with: (~~A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B~~1) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed ~~on or~~ before the day of the Initial Extension of Credit under the Uniform Commercial Code of in all jurisdictions that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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,; (C2) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing ~~the financing statements referred to in clause (B) above and~~ all other effective financing statements filed in ~~all~~ the jurisdictions ~~that the Joint Lead Arrangers may deem necessary or desirable~~ referred to in clause (1) above that name the Borrower, or any other Loan Party as debtor, together with copies of such other financing statements,; (D3) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,; (E4) evidence of the insurance required by the terms of the Security ~~Agreement naming the Collateral Agent, on behalf~~ Agreement; (5) copies of the ~~Lender Parties~~Assigned Agreements, ~~as additional insured and loss payee with such responsible and reputable insurance companies or associations~~if any, ~~and~~ referred to in ~~such amounts and covering such risks, as is satisfactory~~ the Security Agreement; (6) an original executed promissory note issued by Egerton Holdings payable to the order of the Borrower representing amounts advanced by the Borrower to repay the Egerton GRP Debt and duly endorsed to the order of the Administrative ~~Agents~~ Agent by the Borrower (the "Egerton Intercompany Debt" (except ------------------------- that no such note shall be required if the Borrower makes a capital contribution rather than an advance to Egerton Holdings in respect of the foregoing and such promissory note shall not be required to be delivered until the ~~Joint Lead Arrangers,~~ date of advance by the Borrower of such amounts); and (F7) evidence that all other action that the ~~Joint Lead Arrangers~~ Administrative Agent may deem necessary or desirable 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, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)~~taken. (~~iii~~A) ~~A guaranty~~ Fully executed counterparts of Mortgages duly executed by the applicable Loan Party, together with evidence that counterparts of the Mortgages have been delivered to a title insurance company (reasonably acceptable to the Lenders) insuring the Lien of the Mortgages for recording in ~~substantially~~ all places to the extent necessary or desirable, in the reasonable judgment of the Lenders, to create a valid and enforceable first priority lien on each Mortgaged Property (subject only to Permitted Real Property Encumbrances) in favor of Administrative Agent (or a trustee acting on behalf of Administrative Agent required or desired under local law) for the benefit of the Secured Parties; (B) Mortgagee title insurance policies (or binding commitments to issue such title insurance policies) which shall (1) be issued to Administrative Agent for the benefit of the Secured Parties by title insurance companies reasonably satisfactory to the Lenders (the "Mortgage Policies") in ----------------- amounts reasonably satisfactory to the Lenders insuring that the Mortgages are valid and enforceable first priority mortgage liens on the respective Mortgaged Properties, free and clear of all defects, encumbrances and other Liens except Permitted Real Property Encumbrances, (2) be in form and substance reasonably satisfactory to the Lenders, (3) include, as appropriate, an endorsement for future advances under this Agreement, the Notes and the Mortgages and such other endorsements that the Lenders in their discretion may reasonably request, (4) not include an exception for mechanics' liens, and (5) provide for affirmative insurance and such reinsurance (including direct access agreements) as the Lenders in their discretion may reasonably request; (C) Surveys, in form and substance satisfactory to the Lenders, of ~~Exhibit E hereto~~ each Mortgaged Property listed on Schedule 4.01, dated a recent date reasonably ------------- acceptable to the Lenders, certified by a licensed professional surveyor in a manner satisfactory to the Lenders for the benefit of the Lenders; and (D) Real estate appraisals, in form and substance satisfactory to the Lenders of each of the Mortgaged Properties, dated a recent date acceptable to Administrative Agent, which appraisals shall comply with all applicable law, including the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any successor or similar statute, rule, regulation, guideline or order and which appraisals shall be certified by the appraiser as complying with all such applicable law. (v) An intellectual property security agreement in form and substance satisfactory to the Administrative Agent granting to the Administrative Agent for the ratable benefit of the Lenders a first and only priority security interest in all of each Borrower's and each of its Domestic Subsidiaries' intellectual property (together with each other ~~guaranty and guaranty supplement~~ intellectual property security agreement delivered pursuant to Section ~~5.01(j)~~6.13, in each case as amended, supplemented or otherwise modified from time to ~~time~~time in accordance with its terms, ~~the “Subsidiary Guaranty”~~each an "Intellectual Property Security Agreement"), duly executed by ----------------------------------------- the Borrower and each ~~Subsidiary Guarantor~~such Domestic Subsidiary, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first and only priority liens and security interests created under the Intellectual Property Security Agreement has been taken. (ivvi) One or more guaranties in form and substance satisfactory to the Administrative Agent (as hereafter amended, supplemented or otherwise modified from time to time individually and collectively, the "Guaranty"), duly -------- executed by each Domestic Subsidiary of the Borrower in existence on the Closing Date, except to the extent otherwise agreed to by the Administrative Agent. (vii) Certified copies of ~~the~~ resolutions of the ~~board~~ Board of ~~directors or~~ Directors of the ~~members or managers of~~ Borrower and each other Loan Party approving the ~~Transaction~~ Acquisition, this Agreement, the Notes, and each other Loan Document and Acquisition 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 ~~Transaction~~ Acquisition, this Agreement, the Notes, and each other Loan Document ~~to which it is or is to be a party~~and Acquisition Document. (vviii) A copy of the charter of the Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary of State of the jurisdiction of its incorporation as being a true and correct copy thereof. (ix) A copy of a certificate of the Secretary of State of the jurisdiction of ~~incorporation or organization of each Loan Party~~its incorporation, dated ~~reasonably near~~ within five (5) Business Days prior to the ~~Effective Date, certifying (A) as to a true and correct copy~~ date of the ~~charter~~Initial Extension of Credit, ~~articles~~ listing the charter of ~~incorporation or articles of organization, as~~ the ~~case may be (“Organizational Documents”) of such~~ Borrower and each other Loan Party and each amendment thereto on file in ~~such Secretary’s~~ its office and ~~(B)~~ certifying that (1) such amendments are the only amendments to the Borrower's or such other Loan Party~~’s Organizational Documents~~ 's charter on file in ~~such Secretary’s~~ its office, (2) ~~if applicable, such~~ the Borrower and each other Loan Party ~~has~~ have paid all franchise taxes to the date of such certificate and (C3) ~~such~~ the Borrower and each other Loan Party is are duly incorporated ~~or organized~~ and in good standing ~~or presently subsisting~~ under the laws of the State of the jurisdiction of its ~~incorporation or organization~~incorporation. (vix) A copy of a certificate of the Secretary of State of each ~~jurisdiction reasonably requested by the Joint Lead Arrangers~~State listed on Schedule 3.01(a)(x), dated reasonably near the ~~Effective Date~~date of the Initial ------------------- Extension of Credit, stating that a the Borrower and each other Loan Party is are duly qualified and in good standing as a foreign ~~entity~~ corporations in such State and ~~has~~ have filed all annual reports required to be filed to the date of such certificate. (~~vii~~xi) A certificate of the Borrower and each other Loan ~~Party,~~ Party signed on behalf of the Borrower or such other Loan ~~Party~~ Party, as the case may be, by a Responsible ~~Officer~~Officer and the Secretary or an Assistant Secretary of the Borrower or such other Loan Party, as the case may be, dated the date of the ~~Effective Date~~ Initial Extension of Credit (the statements made in ~~which~~ such certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A1) the absence of any amendments to the ~~Organizational Documents~~ charter of the Borrower or such other Loan Party since the date of the Secretary of State’s 's certificate referred to ~~in Section 3.01(a)(v)~~above, (B2) a true and correct copy of the bylaws ~~or operating agreement, as applicable,~~ of ~~such~~ the Borrower and each other 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 date~~ of the ~~Effective Date~~Initial Extension of Credit, (C3) the due ~~incorporation/organization~~ incorporation and good standing ~~or valid existence~~ of ~~such~~ the Borrower and each other Loan Party as a corporation ~~or limited liability company~~ organized under the laws of the jurisdiction of its ~~incorporation or organization~~incorporation, and the absence of any proceeding for the dissolution or liquidation of ~~such~~ the Borrower or any other Loan Party, (D4) the truth of the representations and warranties contained in any Pre-Commitment Information, the Loan Documents and the Acquisition Documents as though made on and as of the date of the Initial Extension of ~~Credit~~ Credit, (5) the satisfaction of the conditions precedent required of the Borrower and its Subsidiaries as set forth in this Section 3.01, and (E6) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (~~viii~~xii) A certificate of ~~a Responsible Officer~~ the Secretary or an Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of ~~such~~ the Borrower and each other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document to which ~~it is~~ they are or is are to be ~~a party~~ parties and the other documents to be delivered hereunder and thereunder. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (x) Certificates, in substantially the form of Exhibit F, attesting to the Solvency of each Loan Party individually and together with its Subsidiaries, taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, if any, or other Responsible Officer if none. (xi) Audited annual financial statements dated December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. (xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xiii) Favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP counsel for the Loan Parties, in substantially the forms of respectively Exhibits G-1 and G-2 hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request. (xiv) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.12 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and clear of any Lien other than Liens created under the Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2010. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and local counsel to the Lender Parties). (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Effective Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full, the commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Appears in 1 contract

Sources: Credit Agreement (Channell Commercial Corp)

Common use of Conditions Precedent to Initial Extension of Credit Clause in Contracts