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

Appears in 2 contracts

Sources: Credit Agreement (Uniroyal Chemical Co Inc), Credit Agreement (Crompton & Knowles Corp)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit~~precedent: (a) ~~The Merger~~ Each Lender shall be satisfied that all existing Debt of each Loan Party and each of their respective Subsidiaries, other than the Debt identified on Schedule 4.01(a) (the "SURVIVING DEBT"), has been, or will be -------------- concurrently with and with the proceeds of the Initial Extension of Credit hereunder, prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. Concurrently with the funding of the initial Advances hereunder, all commitments under the Existing Credit Agreement shall have been ~~consummated substantially in accordance with the terms~~ terminated and all obligations of the ~~Merger Agreement, without any waiver or amendment not consented to by~~ Borrower and its Subsidiaries under the ~~Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws~~Existing Credit Agreement shall have been satisfied. (b) ~~The Merger Agreement shall be in full force and effect. (c) The~~ Each Lender ~~Parties~~ shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of ~~its~~ their respective Subsidiaries, including the terms and conditions of the certificate of limited partnership, the Borrower Partnership Agreement, the charter, bylaws and each class of 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. (d) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (ec) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of ~~(i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole,~~ any Loan Party or any of their respective Subsidiaries since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 19951996. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of ~~its~~ their respective Subsidiaries pending or or, to the Borrower's knowledge, threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could reasonably be ~~reasonably likely~~ expected to have a ~~Material Adverse Effect other than~~ material adverse effect on the ~~matters described on Schedule 3.01(f)~~ business, condition (~~the "Disclosed Litigation")~~ financial or otherwise), operations, performance, properties or prospects of any Loan Party or any of their respective Subsidiaries, taken as a whole or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement, any Note, any other Loan ~~Document, any Related~~ Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (ge) The Agent and the Lender Parties shall have completed a due diligence investigation of the ~~Borrowers~~ Loan Parties and their respective Subsidiaries in scope, and with results, satisfactory to the Agent and the Lender Parties, and nothing shall have come to the attention of the Agent or the Lender Parties during the course of such due diligence investigation to lead any of 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 Merger, Crompton Corp.~~ Borrower and its Subsidiaries or any other Loan Party would not have good and marketable title to all material assets ~~of Uniroyal Corp. and its Subsidiaries~~ reflected in the ~~Information Memorandum~~ information previously provided to the Agent and ~~(iii) that the Merger will have a Material Adverse Effect~~any Lender Party; without limiting the generality of the foregoing, the Agent and each Lender ~~Parties~~ Party shall have been given such access to the management, records, books of account, contracts and properties of ~~the Borrowers~~ each Loan Party and their ~~respective~~ Subsidiaries as they shall have reasonably requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (jf) The ~~Borrowers~~ Borrower shall have paid all accrued fees and expenses of the Agent and the Lender Parties provided for in this Agreement or in the Fee Letter and payable at or prior to the Closing Date (~~including~~ including, to the extent invoiced prior to closing, the accrued reasonable fees and expenses of counsel to the ~~Agent and local counsel to the Lender Parties~~Agent). (kg) The Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), ) and in form and substance satisfactory to the ~~Agent~~ Lenders (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~~each Lender, as appropriate. (iiA) Certified copies of (1) in the case of the Borrower, resolutions of the Board of Directors of NGP approving this Agreement, the Notes and each other Loan Document executed by NGP as the general partner of the Borrower and (2) the resolutions of the Board of Directors of ~~each~~ NGP (individually and in its capacity as the general partner of the Borrower, ) and each other Loan Party approving ~~the Merger, this Agreement, the Notes,~~ each other Loan ~~Document and each Related~~ Document to which it is or is to be a party, and (B) copies of all documents evidencing other necessary partnership and corporate action and governmental ~~and other third party approvals and consents~~approvals, if any, with respect to ~~the Merger,~~ this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ Document. (~~iii~~A) ~~A copy~~ Copies of the Borrower's limited partnership certificate and all amendments thereto and copies of the charter of NGP and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) in each case by the Secretary of State of the State of such Person's jurisdiction of formation or incorporation as being true and correct copies thereof and (B) copies of the Borrower Partnership Agreement and all amendments thereto certified (as of the date hereof) by the Secretary or an Assistant Secretary of NGP as being true and correct copies thereof. (iv) With respect to the Borrower and each other Loan Party, copies of a certificate of the Secretary of State of the State of such Person's jurisdiction of ~~its~~ formation or incorporation, as the case may be, dated reasonably near the date of the Initial Extension of Credit, listing the ~~charter~~ limited partnership certificate or charter, as the case may be, of ~~each Borrower and each other Loan Party~~ such Person and each amendment thereto on file in ~~his~~ such office and certifying that (A) such limited partnership certificate or charter, as the case may be, is a true and complete copy thereof, (B) such amendments are the only amendments to such ~~Borrower~~Person's limited partnership certificate or ~~such other Loan Party's charter~~ charter, as the case may be, on file in ~~his~~ such office, (BC) ~~each Borrower and each other Loan Party have~~ such Person has paid all franchise taxes to the date of such certificate and (CD) ~~each Borrower and each other Loan Party are~~ such Person is duly ~~incorporated~~ formed as a limited partnership or is duly incorporated, as the case may be, and in good standing under the laws of ~~the State of the jurisdiction of its incorporation~~such State. (ivv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of the State of ~~Delaware satisfactory to~~ California, dated reasonably near the ~~Lender Parties~~ date of the ~~consummation~~ Initial Extension of Credit, stating that the ~~Merger. (v) A certificate of each~~ Borrower and each other Loan ~~Party, signed on behalf of such Borrower~~ Party is duly qualified and in good standing as a foreign limited partnership or ~~such other Loan Party~~corporation, as the case may be, ~~by its~~ in such State and has filed all annual reports required to be filed to the date of such certificate. (vi) A certificate of NGP, as the general partner of the Borrower, and of the President or a any Vice President and its Secretary or any Assistant ~~Secretary~~Secretary of NGP and each other Loan Party, 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 limited partnership certificate and the Borrower Partnership Agreement, in the case of the Borrower, or the charter in the case of ~~such Borrower or such~~ NGP and each other Loan ~~Party~~ Party, since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~4.01(g)(iv), (B) a true and correct ~~copy~~ copies of the bylaws of ~~such Borrower or such other~~ each Loan Party (other than the Borrower) as in effect on the date of the Initial Extension of Credit, (C) the due ~~incorporation~~ formation or incorporation, as the case may be, and good standing of ~~such~~ the Borrower or and such other Loan Party ~~organized~~ as a limited partnership or corporation, as the case may be, formed or organized, as the case may be, under the laws of the State of its jurisdiction of formation or incorporation, as the case may be, and the absence of any proceeding for the dissolution or liquidation of ~~such~~ the Borrower or such other 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. (viA) A certificate of NGP, as the general partner of the Borrower, and (B) a certificate of the Secretary or an Assistant Secretary of each ~~Borrower and each~~ other Loan Party (including NGP), in each case certifying the names and true signatures of the officers of ~~such Borrower or~~ NGP and such other Loan Party (including NGP) authorized to ~~sign~~ sign, whether as the general partner of the Borrower or in its individual capacity, this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (xii) Such financial, business and other information regarding each Loan Party and ~~its~~ their Subsidiaries as the ~~Lender Parties~~ Required Lenders shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under ~~Plans, Multiemployer Plans~~ ERISA and Welfare Plans, collective bargaining agreements and other arrangements with employees, ~~audited~~ annual financial statements ~~of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries)~~ dated December 3031, ~~1995~~1996, ~~audited annual financial statements of Uniroyal Corp.~~ and ~~its Subsidiaries dated October 1, 1995,~~ interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available. (x) Certified copies of the Borrower Partnership Agreement. (xi) Favorable opinions of (a) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ~~pro forma financial statements~~ special California counsel to the Borrower and NGP, in substantially the form of Exhibit G-1 hereto and (b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special Maryland counsel to NGP, in substantially the form of Exhibit G-2 hereto, and in each case as to ~~Crompton Corp. and its Subsidiaries after giving effect to~~ such other matters as the ~~Merger and the other transactions~~Agent may reasonably request. (xii) A favorable opinion of Shearman & Sterling, ~~on a Consolidated basis, of balance sheets, income statements and cash flow statements~~ counsel for the ~~one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers~~Agent, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination DateAgent. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (National Golf Properties Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ Acquisition shall have been consummated ~~substantially~~ in accordance with the terms of the ~~Merger~~ Purchase Agreement, without any waiver or amendment not consented to by the ~~Lender Parties~~ Agents of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (b) The ~~Merger~~ Purchase Agreement shall be in full force and effect. (c) Parent shall have received at least $375,000,000 in Net Cash Proceeds of the sale of equity to the Equity Investors, and such Net Cash Proceeds shall have been contributed, directly or indirectly, to the Borrower as a capital contribution and the Borrower shall have received $500,000,000 (less an underwriting spread of 3.5% on the first $350,000,000 and 4.5% on the remaining $150,000,000) in gross cash proceeds of the issuance of the Subordinated Notes. (d) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (de) The ~~Lender Parties~~ Agents shall be satisfied that all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~3.01(e) (the "Surviving Debt"), has been -------------- prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties. (ef) ~~There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after~~ Before giving effect to the ~~Merger~~ Acquisition and the other transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole,~~ there shall have occurred no Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995. (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 agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger~~Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (gh) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ Nothing shall have come to the attention of the Lender Parties during the course of ~~such~~ their 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 ~~Merger~~Acquisition, ~~Crompton Corp.~~ the Borrower and its Subsidiaries would not have good and marketable title to all material assets of ~~Uniroyal Corp.~~ the Company and its Subsidiaries reflected in the Information Memorandum (other than those disposed of in the ordinary course of business) and (iii) that the ~~Merger~~ Acquisition will have a Material Adverse Effect; without limiting the generality of the foregoing, the ~~Lender Parties~~ Agents shall have been given such access to the management, records, books of account, contracts and properties of the ~~Borrowers~~ Loan Parties and their ~~respective~~ Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby ~~(including, without limitation, the Merger)~~ shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the ~~Lender Parties~~Agents) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to ~~any of~~ Holdings or the ~~Borrowers~~Borrower, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the ~~Effective~~ First Closing Date or (z) expose the ~~Agent~~ Arrangers, the Agents or the Lender Parties to personal liability; provided, however, that with respect to the receipt -------- ------- of licenses to sell or serve alcoholic beverages or to engage in gaming, lottery or gambling activities (or the necessary consents or approvals with respect thereto), such condition shall be satisfied if the Agents are reasonably satisfied that licenses have been obtained or that other appropriate mechanisms which will not result in denial or loss of a license or penalties (other than immaterial civil penalties) or put the Borrower or its Subsidiaries at risk of an enforcement action for a violation are in place and, in each case, are expected to remain in place for the foreseeable future without material risk or expectation of losing such ability in the future (other than the risk that any holder of a liquor license or a gaming, lottery or gambling license that complies with the terms and requirements of such license and the relevant law generally bears of nonrenewal) so that after the First Closing Date, alcoholic beverages can continue to be sold or served and gaming activities can continue to be conducted in essentially the same manner and on essentially the same terms (and without any additional material restrictions) as before the First Closing Date and in compliance in all material respects with all applicable laws and rules, regulations, statutes, licenses and orders of any governmental authority relating to the sale or service of alcoholic beverages or engaging in gaming, lottery and gambling activities at bowling centers (or related premises) which would reasonably be expected to enable the Borrower and its Subsidiaries to derive, during a 10-month period beginning on the First Closing Date, at least 90% of the total revenues from the sale and/or service of alcoholic beverages and, other than in the State of Washington, gaming, lottery and gambling activities (and from any related management service agreements and leases) during the 10-month period ended October 31, 1995; all applicable waiting periods 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~~ Agents that restrains, prevents or imposes materially adverse conditions upon the Acquisition, the Loan Documents or and the Related Documents and the transactions contemplated ~~thereby (including, without limitation, the Merger)~~thereby. (j) The ~~Borrowers~~ Agents shall be satisfied with all contractual and other arrangements with the Borrower's management. (k) All capital stock of the Borrower shall be owned by Holdings, all capital stock of Holdings shall be owned by Parent and all capital stock of Parent shall be owned by the Equity Investors, and all of the stock of the Borrower's Subsidiaries shall be owned by the Borrower or one or more of the Borrower's Subsidiaries, in each case free and clear of any lien, charge or encumbrance, other than Liens in favor of the Secured Parties. (l) The Agents shall be satisfied that the Borrower and its Subsidiaries will be able to meet their obligations under all Plans, that the Borrower's and its Subsidiaries' 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 Plan and that no termination of, or withdrawal from, any such Plan has occurred or is contemplated that could result in a material liability. (m) The Agents shall be satisfied (i) with the sources, terms and conditions of the equity and the other debt financing for the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents, (ii) that the amount of committed equity and debt financing shall be sufficient to meet the financing requirements of the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents and (iii) that the amount of transaction fees and expenses payable in connection with the closing of the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents does not exceed the maximum amount previously disclosed to the Initial Lenders. (n) The Lender Parties shall have received audited financial statements of the Borrower and its Subsidiaries for the year ended December 31, 1995, from which financial statements shall be derived a Consolidated pro forma EBITDA of the Borrower and its Subsidiaries of at least $165,000,000 (as reflected in the offering circular for the Subordinated Notes). (o) The Borrower shall have paid all accrued fees of the Lender Parties and all accrued fees and expenses of the ~~Agent~~ Agents and the ~~Lender Parties~~ Arrangers (including the accrued fees and expenses of counsel to the ~~Agent~~ Agents and ~~local~~ the Arrangers and local, foreign and intellectual property counsel to to, and of other experts and advisors retained by, the Agents for the Lender Parties). (kp) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each~~ the Borrower, the Company and each other Loan Party approving the ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and each Related 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 ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of ~~each Borrower~~ the Borrower, the Company and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to ~~such~~ the Borrower's, the Company's or such other Loan Party's charter on file in his office, (B) ~~each Borrower~~ the Borrower, the Company and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) ~~each Borrower~~ the Borrower, the Company and each other Loan Party are duly incorporated and in good standing under the laws of the ~~State of the~~ jurisdiction of its incorporation. (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of such states as the Administrative Agent may require, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower, the Company and each other Loan Party are duly qualified and in good standing as foreign corporations in such State ~~of Delaware satisfactory~~ and have filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (v) A certificate of ~~each Borrower~~ the Borrower, the Company and each other Loan Party, signed on behalf of ~~such Borrower or~~ the Borrower, the Company and such other Loan ~~Party, as the case may be,~~ Party 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 Borrower~~ the Borrower, the Company or such other Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(p)(iii), (B) a true and correct copy of the bylaws of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party as a corporation organized under the laws of the ~~State~~ state of its incorporation, and the absence of any proceeding for the dissolution or liquidation of ~~such Borrower~~ the Borrower, the Company or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of ~~each Borrower~~ the Borrower, the Company and each other Loan Party certifying the names and true signatures of the officers of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit ~~D-1~~ D hereto (together with each other security agreement delivered or to be delivered pursuant to Section 5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Crompton~~ Security Agreement"), duly executed by ~~each Crompton~~ the ------------------ Borrower and each ~~Crompton Guarantor~~other Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in ~~blank,~~ blank and instruments evidencing the Pledged Debt ~~(except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed 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 liens and security interests created under the ~~Crompton~~ Security Agreement, covering the Collateral described in the ~~Crompton~~ Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name ~~any Crompton Borrower~~ the Borrower, the Company or any ~~Crompton Guarantor~~ other 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 ~~Crompton~~ Security Agreement that the Collateral 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, (F) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment (to the extent required by the terms of the Security Agreement), 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) the Blocked Account Letters referred to in the Security Agreement (to the extent required by the terms of the Security Agreement), duly executed by each Blocked Account Bank referred to in the Security Agreement, and (EH) evidence that all other action that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Crompton~~ Security Agreement has been taken. (viii) A An intellectual property security agreement in substantially the form of Exhibit ~~D-2~~ E hereto (~~as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and,~~ together with ~~the Crompton Security Agreement and~~ each other intellectual property security agreement delivered or to be delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Intellectual Property Security Agreement"), duly executed by the ~~Uniroyal~~ ---------------------------------------- Borrower and each ~~Uniroyal Guarantor~~other Loan Party, together ~~with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of~~ with evidence that all ~~jurisdictions~~ action that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Intellectual Property Security Agreement has been taken. (ix) ~~A guaranty~~ Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit ~~E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x~~F hereto and covering properties listed on Part I of Schedule 4.01(kk) ~~A guaranty in substantially the form~~ and Part I of ~~Exhibit E-2~~ Schedule 4.01(ll) (together with each other ~~guaranty~~ mortgage delivered or to be delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oaccordance

Appears in 1 contract

Sources: Credit Agreement (Amf Bowling Worldwide Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of ~~each Loan Party~~ the Borrower and ~~each of~~ its ~~Subsidiaries,~~ Subsidiaries including the terms and conditions of the charter, bylaws and each class of capital stock of ~~each Loan Party~~ the Borrower and ~~each such Subsidiary~~ its Subsidiaries and of each agreement or instrument relating to such structure or capitalization. (db) ~~The~~ There shall not have occurred (and the Lender Parties shall not have become aware of any facts, conditions or other information not previously known) which the Lender Parties shall reasonably determine has, or could reasonably be ~~satisfied that all Existing Debt~~expected to have, ~~other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished~~a Material Adverse Effect. (ec) ~~There~~ All necessary governmental (domestic and foreign) and third party approvals and/or consents in connection with the consummation of the transactions contemplated hereby shall have ~~occurred no material~~ been (or will, within the time frame required, be) obtained and remain in full effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse ~~change in~~ conditions upon the ~~business, condition (financial or otherwise), operations, performance, properties or prospects~~ consummation of ~~(i) before and after giving effect to~~ the ~~Merger~~ transactions contemplated by this Agreement and the other Loan Documents or otherwise referred to herein or therein. Additionally, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the consummation of the transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the~~ any Note or any other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995Loan Documents. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting ~~any Loan Party~~ the Borrower or any of its ~~Subsidiaries~~ properties or any Subsidiary or any of their respective properties pending or threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could reasonably be ~~reasonably likely~~ expected to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to adversely affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement, any Note, any other Loan ~~Document, any Related~~ Document or the consummation of the transactions contemplated ~~hereby, and there shall have been no material adverse change in the status,~~ hereby or ~~financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(f)~~thereby. (ge) The Lender Parties shall have completed a due diligence investigation of the ~~Borrowers~~ Borrower and ~~their respective~~ each of its Subsidiaries (including, without limitation, a field examination of the quality of the Borrower's current assets and of the Borrower's management information systems) in scope, and with results, reasonably 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~~ any written information, exhibit or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals report (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender Parties). (k) The Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the 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. (ii) Certified copies of the resolutions of the Board of Directors of each Borrower, and each other Loan Party approving the Merger, this Agreement, the Notes, each other Loan Document and each Related 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 Merger, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower or such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (Carlyle Industries Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ Acquisition shall have been consummated ~~substantially~~ in accordance with the terms of the ~~Merger~~ Purchase Agreement, without any waiver or amendment not consented to by the ~~Lender Parties~~ Agents of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (b) The ~~Merger~~ Purchase Agreement shall be in full force and effect. (c) Parent shall have received at least $375,000,000 in Net Cash Proceeds of the sale of equity to the Equity Investors, and such Net Cash Proceeds shall have been contributed, directly or indirectly, to the Borrower as a capital contribution and the Borrower shall have received $500,000,000 (less an underwriting spread of 3.5% on the first $350,000,000 and 4.5% on the remaining $150,000,000) in gross cash proceeds of the issuance of the Subordinated Notes. (d) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (de) The ~~Lender Parties~~ Agents shall be satisfied that all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~3.01(e) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties. (ef) ~~There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after~~ Before giving effect to the ~~Merger~~ Acquisition and the other transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole,~~ there shall have occurred no Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995. (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 agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger~~Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (gh) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ Nothing shall have come to the attention of the Lender Parties during the course of ~~such~~ their 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 ~~Merger~~Acquisition, ~~Crompton Corp.~~ the Borrower and its Subsidiaries would not have good and marketable title to all material assets of ~~Uniroyal Corp.~~ the Company and its Subsidiaries reflected in the Information Memorandum (other than those disposed of in the ordinary course of business) and (iii) that the ~~Merger~~ Acquisition will have a Material Adverse Effect; without limiting the generality of the foregoing, the ~~Lender Parties~~ Agents shall have been given such access to the management, records, books of account, contracts and properties of the ~~Borrowers~~ Loan Parties and their ~~respective~~ Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby ~~(including, without limitation, the Merger)~~ shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the ~~Lender Parties~~Agents) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to ~~any of~~ Holdings or the ~~Borrowers~~Borrower, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the ~~Effective~~ First Closing Date or (z) expose the ~~Agent~~ Arrangers, the Agents or the Lender Parties to personal liability; provided, however, that with respect to the receipt of licenses to sell or serve alcoholic beverages or to engage in gaming, lottery or gambling activities (or the necessary consents or approvals with respect thereto), such condition shall be satisfied if the Agents are reasonably satisfied that licenses have been obtained or that other appropriate mechanisms which will not result in denial or loss of a license or penalties (other than immaterial civil penalties) or put the Borrower or its Subsidiaries at risk of an enforcement action for a violation are in place and, in each case, are expected to remain in place for the foreseeable future without material risk or expectation of losing such ability in the future (other than the risk that any holder of a liquor license or a gaming, lottery or gambling license that complies with the terms and requirements of such license and the relevant law generally bears of nonrenewal) so that after the First Closing Date, alcoholic beverages can continue to be sold or served and gaming activities can continue to be conducted in essentially the same manner and on essentially the same terms (and without any additional material restrictions) as before the First Closing Date and in compliance in all material respects with all applicable laws and rules, regulations, statutes, licenses and orders of any governmental authority relating to the sale or service of alcoholic beverages or engaging in gaming, lottery and gambling activities at bowling centers (or related premises) which would reasonably be expected to enable the Borrower and its Subsidiaries to derive, during a 10-month period beginning on the First Closing Date, at least 90% of the total revenues from the sale and/or service of alcoholic beverages and, other than in the State of Washington, gaming, lottery and gambling activities (and from any related management service agreements and leases) during the 10-month period ended October 31, 1995; all applicable waiting periods 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~~ Agents that restrains, prevents or imposes materially adverse conditions upon the Acquisition, the Loan Documents or and the Related Documents and the transactions contemplated ~~thereby (including, without limitation, the Merger)~~thereby. (j) The ~~Borrowers~~ Agents shall be satisfied with all contractual and other arrangements with the Borrower's management. (k) All capital stock of the Borrower shall be owned by Holdings, all capital stock of Holdings shall be owned by Parent and all capital stock of Parent shall be owned by the Equity Investors, and all of the stock of the Borrower's Subsidiaries shall be owned by the Borrower or one or more of the Borrower's Subsidiaries, in each case free and clear of any lien, charge or encumbrance, other than Liens in favor of the Secured Parties. (l) The Agents shall be satisfied that the Borrower and its Subsidiaries will be able to meet their obligations under all Plans, that the Borrower's and its Subsidiaries' 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 Plan and that no termination of, or withdrawal from, any such Plan has occurred or is contemplated that could result in a material liability. (m) The Agents shall be satisfied (i) with the sources, terms and conditions of the equity and the other debt financing for the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents, (ii) that the amount of committed equity and debt financing shall be sufficient to meet the financing requirements of the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents and (iii) that the amount of transaction fees and expenses payable in connection with the closing of the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents does not exceed the maximum amount previously disclosed to the Initial Lenders. (n) The Lender Parties shall have received audited financial statements of the Borrower and its Subsidiaries for the year ended December 31, 1995, from which financial statements shall be derived a Consolidated pro forma EBITDA of the Borrower and its Subsidiaries of at least $165,000,000 (as reflected in the offering circular for the Subordinated Notes). (o) The Borrower shall have paid all accrued fees of the Lender Parties and all accrued fees and expenses of the ~~Agent~~ Agents and the ~~Lender Parties~~ Arrangers (including the accrued fees and expenses of counsel to the ~~Agent~~ Agents and ~~local~~ the Arrangers and local, foreign and intellectual property counsel to to, and of other experts and advisors retained by, the Agents for the Lender Parties). (kp) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each~~ the Borrower, the Company and each other Loan Party approving the ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and each Related 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 ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of ~~each Borrower~~ the Borrower, the Company and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to ~~such~~ the Borrower's, the Company's or such other Loan Party's charter on file in his office, (B) ~~each Borrower~~ the Borrower, the Company and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) ~~each Borrower~~ the Borrower, the Company and each other Loan Party are duly incorporated and in good standing under the laws of the ~~State of the~~ jurisdiction of its incorporation. (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of such states as the Administrative Agent may require, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower, the Company and each other Loan Party are duly qualified and in good standing as foreign corporations in such State ~~of Delaware satisfactory~~ and have filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (v) A certificate of ~~each Borrower~~ the Borrower, the Company and each other Loan Party, signed on behalf of ~~such Borrower or~~ the Borrower, the Company and such other Loan ~~Party, as the case may be,~~ Party 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 Borrower~~ the Borrower, the Company or such other Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(p)(iii), (B) a true and correct copy of the bylaws of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party as a corporation organized under the laws of the ~~State~~ state of its incorporation, and the absence of any proceeding for the dissolution or liquidation of ~~such Borrower~~ the Borrower, the Company or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of ~~each Borrower~~ the Borrower, the Company and each other Loan Party certifying the names and true signatures of the officers of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit ~~D-1~~ D hereto (together with each other security agreement delivered or to be delivered pursuant to Section 5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Crompton~~ Security Agreement"), duly executed by ~~each Crompton~~ the Borrower and each ~~Crompton Guarantor~~other Loan Party, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in ~~blank,~~ blank and instruments evidencing the Pledged Debt ~~(except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed 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 liens and security interests created under the ~~Crompton~~ Security Agreement, covering the Collateral described in the ~~Crompton~~ Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name ~~any Crompton Borrower~~ the Borrower, the Company or any ~~Crompton Guarantor~~ other 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 ~~Crompton~~ Security Agreement that the Collateral 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, (F) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment (to the extent required by the terms of the Security Agreement), 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) the Blocked Account Letters referred to in the Security Agreement (to the extent required by the terms of the Security Agreement), duly executed by each Blocked Account Bank referred to in the Security Agreement, and (EH) evidence that all other action that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Crompton~~ Security Agreement has been taken. (viii) A An intellectual property security agreement in substantially the form of Exhibit ~~D-2~~ E hereto (~~as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and,~~ together with ~~the Crompton Security Agreement and~~ each other intellectual property security agreement delivered or to be delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Intellectual Property Security Agreement"), duly executed by the ~~Uniroyal~~ Borrower and each ~~Uniroyal Guarantor~~other Loan Party, together ~~with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of~~ with evidence that all ~~jurisdictions~~ action that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Intellectual Property Security Agreement has been taken. (ix) ~~A guaranty~~ Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit ~~E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x~~F hereto and covering properties listed on Part I of Schedule 4.01(kk) ~~A guaranty in substantially the form~~ and Part I of ~~Exhibit E-2~~ Schedule 4.01(ll) (together with each other ~~guaranty~~ mortgage delivered or to be delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with ~~its~~ their terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana UndertakingMortgages"), duly executed by the ~~Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report~~appropriate Loan Party, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 otogether w

Appears in 1 contract

Sources: Credit Agreement (Amf Bowling Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties shall be satisfied with the corporate or partnership (as applicable) and legal structure and capitalization of each Loan Party and each of its ~~Subsidiaries~~Subsidiaries (including, without limitation, Shoney's SPV and the TPI SPV), including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (db) The Lender Parties shall (i) be satisfied that all Existing ~~Debt~~Debt (including, without limitation, Debt in respect of the Reducing Revolving Credit Agreement, the Bridge Loan Credit Agreement, the First American Credit Agreement and the Existing Mortgage Notes), other than the ~~Debt identified on Schedule 3.01(d) (the "~~Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties , (ii) have received duly executed and, if applicable, acknowledged, satisfactions, releases and terminations in form sufficient under applicable law to release, terminate and discharge all Liens securing Existing Debt other than Surviving Debt and (iii) be satisfied with all arrangements made in connection with the Variable Rate Notes and the related letters of credit (including, without limitation, all escrow arrangements made in respect of drawings under such letters of credit). (ec) ~~There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after~~ Before giving effect to the ~~Merger and the other~~ transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries~~there shall have occurred no Material Adverse Change since October 27, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 19951996. (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) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule ~~3.01(f~~3.01(d) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement, any Note, any other Loan Document, any ~~Related Document~~ Deed or the Certificate of Merger or the consummation of the transactions contemplated ~~hereby~~hereby or 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 Litigation from that described on Schedule ~~3.01(f~~3.01(d). (ge) The Lender Parties shall have completed a due diligence investigation of the ~~Borrowers~~ Borrower and ~~their respective~~ 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, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 ~~Borrowers~~ Borrower and ~~their respective~~ its Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (jf) The ~~Borrowers~~ Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all accrued and invoiced expenses of the Administrative Agent and the Lender Parties (including the accrued and invoiced fees and expenses of counsel to the Administrative Agent, special intellectual property counsel to the Administrative Agent and local counsel to the ~~Lender Parties~~Administrative Agent). (kg) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to 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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower and each other Loan Party approving ~~the Merger,~~ this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ 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 Merger,~~ this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ Document. (iii) 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 (or other appropriate officer) of the jurisdiction of its incorporation as being a true and correct copy thereof. (iv) A copy of a certificate of the Secretary of State (or other appropriate officer) of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, ~~listing~~ certifying that (A) the ~~charter of each~~ Borrower and each other Loan Party ~~and each amendment thereto on file in his office and certifying that~~ (Aother than Shoney's Investments, Inc.) ~~such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party~~ have paid all franchise taxes due prior to the date of such certificate and (CB) ~~each~~ the Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the ~~State of the~~ jurisdiction of its incorporation. (ivv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State (or other appropriate officer) of each jurisdiction in which the Borrower and each other Loan Party transacts business, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower and each other Loan Party are duly qualified and in good standing as foreign corporations in such State ~~of Delaware satisfactory~~ and have filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (vvi) A certificate of ~~each~~ the Borrower and each other Loan Party, signed on behalf of ~~such~~ the Borrower or and such other Loan ~~Party, as the case may be,~~ Party 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~~ the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(g)(iii), (B) a true and correct copy of the bylaws of ~~such~~ the Borrower or and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation or formation and good standing of ~~such~~ the Borrower or and such other Loan Party as a corporation organized under the laws of the ~~State~~ jurisdiction of its ~~incorporation~~incorporation or formation, and the absence of any proceeding for the dissolution or liquidation of ~~such~~ the Borrower or such other 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. (vivii) A certificate of the Secretary or an Assistant Secretary of ~~each~~ the Borrower and each other Loan Party certifying the names and true signatures of the officers of ~~such~~ the Borrower or and such other Loan Party authorized to sign this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit ~~D-2~~ D (~~as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and,~~ together with ~~the Crompton Security Agreement and~~ each other security agreement delivered pursuant to Section ~~5.01(k~~5.01(l), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the ~~Uniroyal~~ Borrower and each ~~Uniroyal Guarantor,~~ other Collateral Grantor together with: (A) ~~duly~~ 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) executed copies of proper financing statements, to be filed ~~on or before the day of the Initial Extension of Credit~~ under the Uniform Commercial Code of all jurisdictions 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 ~~Uniroyal~~ Security Agreement, covering the Collateral described in the ~~Uniroyal~~ Security Agreement, (BC) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed as of the date of such requests in the jurisdictions referred to in clause (AB) above that name the ~~Uniroyal~~ Borrower or any ~~Uniroyal Guarantor~~ other Collateral Grantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of ~~the Security~~ this Agreement, (E) ~~instruments evidencing~~ copies of the ~~Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ Assigned Agreements referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, ~~and~~ and (~~F)evidence~~ F) evidence that all other 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 ~~Uniroyal~~ Security Agreement has been taken or that the necessary steps for such action have been taken. (ix) ~~A guaranty~~ An intellectual property security agreement in substantially the form of Exhibit ~~E-1~~ I (together with each other intellectual property security agreement delivered pursuant to Section 5.01(l), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Parent Guaranty~~Intellectual Property Security Agreement"), duly executed by ~~Crompton Corp.~~the Borrower and each other Collateral Grantor 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 that the necessary steps for such action have been taken. (x) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit F and covering the properties listed on Schedule 3.01(g)(x) (together with each other mortgage delivered pursuant to Section 5.01(l), (n) and (q), in each case as amended, supplemented or otherwise modified from time to time in accordance with their terms, the "Mortgages"), duly executed by the Borrower, together with: (A) fully paid American Land Title Association Lender's Extended Coverage title insurance policies or in lieu thereof binding commitments therefor (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 properties listed on Schedule 3.01(g)(x), 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) American Land Title Association form surveys for each of the properties listed on Schedule 3.01(g)(x), dated no more than 60 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, in form and substance satisfactory to the Administrative Agent. (C) an appraisal of each of the properties indicated on Schedule 4.01(ii), which appraisals shall be from Mars▇▇▇▇ & ▇tev▇▇▇ ▇▇ any other Person acceptable to the Lender Parties and otherwise in form and substance satisfactory to the Lender Parties, (D) evidence of the insurance required by the terms of this Agreement, 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 properties listed on Schedule 3.01(g)(x) has been taken or that the necessary steps for such action have been taken. (xi) A subsidiary guaranty in substantially the form of Exhibit ~~E-2~~ G (~~together with each other guaranty delivered pursuant to Section 5.01(k), in each case~~ as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (xii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, the Consolidated balance sheet as at August 3, 1997 for the Borrower and its Subsidiaries, 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 ~~of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries~~ dated October 127, ~~1995~~1996, 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~~ statements, as ~~to Crompton Corp.~~ of a later date within 45 days of the day of the Initial Extension of Credit) and ~~its Subsidiaries after giving effect~~ forecasts prepared by management of the Borrower in form and substance satisfactory to the ~~Merger and the other transactions, on a Consolidated basis~~Lender Parties, of balance sheets, income statements and cash flow statements on a fiscal quarterly basis for the ~~one-year period ended on or about March 31, 1996 and forecasts prepared by management~~ Fiscal Year in which the Initial Extension of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 Credit occurs and on an annual basis for each ~~year~~ Fiscal Year thereafter until the Termination Date. (xiii) ~~Certificates,~~ Certificates substantially in ~~substantially~~ the form of Exhibit GK, attesting to the Solvency of the Borrower and each ~~Loan Party~~ Significant Subsidiary (other than TPI SPV) after giving effect to the ~~Merger and the other~~ transactions contemplated hereby, from its president, treasurer, controller, chief financial officer or principal financial officer. (xiv) ~~A supplement~~ (A) Environmental data base searches, with results acceptable to the ~~Uniroyal Security Agreement~~ Administrative Agent, with respect to the properties indicated on Schedule 4.01(ii) (other than the properties described in ~~respect~~ clause (C) of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"this Section 3.01(g)(xiv)), ~~duly executed~~ (B) completed ASTM Environmental Site Assessment Transaction Screen Questionnaires, with results acceptable to the Administrative Agent, with respect to the properties listed on Schedule 3.01(g)(x) and (C) Phase I site assessment reports prepared by Law Engineering, with results acceptable to the ~~Uniroyal Borrower and~~ Administrative Agent, with respect to the ~~Uniroyal Guarantors.~~four distribution facilities owned by Commissary Operations, Inc. (xv) ~~An environmental assessment report~~A letter, in form and substance satisfactory to the Administrative Agent, from the Borrower to Ernst & Young, its independent certified public accountants, advising such accountants that the Administrative Agent and the Lender Parties have been authorized to exercise (in the presence of a representative of the Borrower) 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 for such information. (xvi) Evidence of insurance naming the Administrative Agent as an additional insured party with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, ~~from Environmental Safety~~ including, without limitation, business interruption insurance. (xvii) A favorable opinion of (A) Tuke Yopp & Swee▇▇▇, ▇▇unsel for the Borrower, in substantially the form of Exhibit H-1 hereto and ~~Designs, Inc.,~~ as to such other matters as any ~~hazards~~Lender Party through the Administrative Agent may reasonably request, ~~costs or liabilities under Environmental Laws~~ (B) Dewe▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ecial New York counsel for the Borrower, in substantially the form of Exhibit H-2 hereto and as to ~~which~~ such other matters as any ~~Loan~~ Lender Party ~~or any~~ through the Administrative Agent may reasonably request. (xviii) Favorable opinions of ~~its Subsidiaries may be subject~~local counsel in the States listed on Schedule 3.01(g)(xviii), ~~the amount and nature o~~in substantially

Appears in 1 contract

Sources: Credit Agreement (Shoneys Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of ~~each~~ the Loan ~~Party and each of its Subsidiaries~~Parties, including the terms and conditions of the charter, bylaws and each class of capital stock of ~~each~~ the Loan ~~Party and each such Subsidiary~~ Parties and of each agreement or instrument relating to such structure or capitalization. (db) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (e) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after Before giving effect to the ~~Merger and the other~~ transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, there shall have occurred no Material Adverse Change since September 30, 1995. (fc) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of ~~its~~ their Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~would be reasonably likely to~~ could have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (gd) The Lender Parties shall have completed a due diligence investigation of the ~~Borrowers~~ Loan Parties (including, without limitation, a field examination of the quality of the Borrower's current assets and ~~their respective~~ of the Borrower's management information systems, a fair market value appraisal of the Borrower's rental equipment from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., a review of the projected tax assumptions of MEDIQ and its Subsidiaries on a Consolidated basis from Deloitte & Touche LLP and a due diligence report on customers prepared by Marketing Corporation of America), each 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 any written information, exhibit or report (including, without limitation, any financial information) furnished by or on behalf of any Loan Party to the ~~Information Memorandum~~ Administrative Agent or any Lender Party was or has become misleading, incorrect or incomplete in any material respect, (ii) ~~that, following~~ that the ~~consummation of the Merger, Crompton Corp. and its Subsidiaries~~ Loan Parties would not have good and marketable title to all of their material assets ~~of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum~~ and (iii) that the ~~Merger~~ transactions contemplated hereby have or 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 Borrowers~~ each Loan Party and ~~their respective~~ its Subsidiaries as they shall have requested. (he) ~~All stock of the Borrowers (~~The Existing Debt, other than ~~Crompton Corp.~~the Debt identified on Schedule 3.01(e) ~~and~~ (the ~~Borrowers' Subsidiaries~~"Surviving Debt"), to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; all filings, recordations and searches necessary or desirable in connection with such liens and security interests shall have been ~~duly made;~~ prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all ~~filing~~ such Surviving Debt shall be on terms and recording fees and taxes shall have been duly paid. (i) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions ~~that are not reasonably acceptable~~ satisfactory to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (jf) ~~The Borrowers shall have paid all~~ All accrued fees and expenses of the ~~Agent~~ Agents and the Lender Parties (including the accrued fees and expenses of counsel to the ~~Agent~~ Agents and of Saiber, Schlesinger, Satz & ▇▇▇▇▇▇▇▇▇, local counsel to the Lender Parties)) shall have been paid. (kg) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to 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. (ii) Certified copies of the resolutions of the Board of Directors of each ~~Borrower, and each other~~ Loan Party approving ~~the Merger,~~ this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a ~~party~~party and of the transactions contemplated hereby, 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 Merger,~~ this Agreement, the Notes, each other Loan Document and each Related ~~Document~~Document and of the transactions contemplated hereby. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, in each case listing the charter of the Borrower, each ~~Borrower~~ Parent Guarantor and each ~~other Loan Party~~ Subsidiary Guarantor 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 ~~Borrower's or such other Loan Party's~~ charter on file in his office, (BC) ~~each Borrower and each other Loan Party have~~ such Person has paid all franchise taxes to the date of such certificate and (CD) ~~each Borrower and each other Loan Party are~~ such Person is duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of the ~~State~~ States listed on Schedule 3.01(g)(iv), dated reasonably near the date of ~~Delaware satisfactory~~ the Initial Extension of Credit, stating that the Borrower and each Parent Guarantor is duly qualified and in good standing as a foreign corporation in such States and has filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (v) A certificate of each ~~Borrower~~ of the Borrower, the Guarantors and each other Loan Party, signed on behalf of such ~~Borrower or such other Loan Party, as the case may be,~~ Person by its President or ~~a Vice President~~ Senior Vice-President, Finance, 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 ~~Borrower or such other Loan Party~~ Person since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(g)(iii), (B) a true and correct copy of the bylaws of such ~~Borrower or such other Loan Party~~ Person as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such ~~Borrower or such other Loan Party~~ Person as a corporation organized under the laws of the ~~State~~ jurisdiction of its ~~incorporation,~~ incorporation and the absence of any proceeding for the dissolution or liquidation of such ~~Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each ~~Borrower~~ of the Borrower, the Guarantors and each other Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other Loan Party~~ Persons authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit ~~D-1~~ D (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor as debtor, together with ~~copies of such~~ each other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section ~~5.01(k~~5.01(m), or 5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the ~~Uniroyal Borrower~~ Borrower, each Parent Guarantor and each ~~Uniroyal Guarantor~~Ongoing Subsidiary, together with: (A) ~~duly~~ 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 endorsed in blank, (B) executed copies of proper financing statements, to be duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of the States listed on Schedule 3.01(g)(vii)(B) and all other jurisdictions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~first priority liens and security interests~~ Liens created under the ~~Uniroyal Security Agreement~~Collateral Documents, covering the Collateral described in the ~~Uniroyal~~ Security Agreement, (BC) 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 (AB) above that name the ~~Uniroyal~~ Borrower ~~or any Uniroyal Guarantor~~ as debtor, together with copies of such other financing statements, (CD) evidence of the completion of all other recordings and filings of or with respect to the ~~Uniroyal~~ Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (DE) evidence of the insurance required by the terms of the Security Agreement, (EF) ~~instruments evidencing~~ executed termination statements (Form UCC-3 or a comparable form), in proper form to be duly filed on the ~~Pledged Debt (~~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 described in the Security Agreement, except as ~~otherwise provided in Sections 5.02(b)(i)(D~~contemplated under the Security Agreement, (G) ~~and 5.02(b)(ii))~~ the Blocked Account Letters referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, ~~and~~ duly executed by each Blocked Account Bank referred to in the Security Agreement, and (~~F)evidence~~ H) evidence that all other 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 ~~Uniroyal~~ Security Agreement has been taken, including delivery of Blocked Account Letters in form and substance satisfactory to the Administrative Agent. (ixviii) A ~~guaranty~~ mortgage in substantially the form of Exhibit ~~E-1~~ E and covering the property listed on Schedule 4.01(ff) (together with each other mortgage delivered pursuant to Section 5.01(m), in each case as amended, supplemented or otherwise modified from time to time in accordance with ~~its~~ their terms, the "~~Parent Guaranty~~Mortgage"), duly executed by ~~Crompton Corp.~~the Borrower or MEDIQ, together with evidence that the Mortgage has been duly recorded in all filing or recording offices that the Administrative Agent may deem desirable and all other action that the Administrative Agent may deem necessary or desirable including a title search in order to create valid first and subsisting Liens on the property described in the Mortgages in favor of the Secured Parties and that all filing and recording expenses and fees have been paid. (xix) A guaranty in substantially the form of Exhibit ~~E-2~~ G (together with each other guaranty delivered pursuant to Section ~~5.01(k~~5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xix) 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. (~~xii~~xi) 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 Consolidated and unaudited consolidating annual financial statements (such unaudited consolidating financial statements certified by the chief financial officer of ~~Crompton Corp.~~ MEDIQ) of MEDIQ and its Subsidiaries ~~(other than Uniroyal Corp.~~ dated September 30, 1993, September 30, 1994 and ~~its Subsidiaries) dated December~~ September 30, 1995, ~~audited annual financial statements of Uniroyal Corp.~~ interim Consolidated and ~~its Subsidiaries dated October 1, 1995, interim~~ consolidating financial statements dated ~~the end of the most recent fiscal quarter for which~~ June 30, 1996 (such financial statements ~~are available~~certified by the chief financial officer of MEDIQ), ~~pro forma financial statements as to Crompton Corp.~~ and ~~its Subsidiaries after giving effect~~ forecasts prepared by management, in form and substance satisfactory to the ~~Merger and the other transactions, on a Consolidated basis~~Lender Parties, of balance sheets, income statements and cash flow statements ~~for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties,~~ on a ~~Consolidated~~ monthly basis ~~and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements~~ for the first ~~year~~ two years following ~~January 1, 1996~~ the day of the Initial Extension of Credit and on an annual basis for each year thereafter until the ~~Termination~~ Final Maturity Date. (xii) An opinion, in substantially the form of Exhibit J, attesting to the Solvency of the Borrower and MEDIQ after giving effect to the Refinancing and the other transactions contemplated hereby, from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. (xiii) Certificates, in substantially the form of ~~Exhibit G~~Exhibits K-1 and K-2, attesting to the Solvency of ~~each Loan Party~~ the Borrower on a Consolidated basis and MEDIQ on a Consolidated basis both before and after giving effect to the ~~Merger~~ Refinancing and the other transactions contemplated hereby, ~~from its~~ signed on behalf of each of the Borrower and MEDIQ by their respective chief financial officer, attesting to the solvency of the Borrower on a Consolidated basis and MEDIQ on a Consolidated basis, respectively. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental Environmental assessment ~~report~~reports, in form and substance satisfactory to the Lender Parties, from ~~Environmental Safety and Designs~~▇▇▇▇▇ Associates, ~~Inc.,~~ Inc. as to any hazards, costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries may be ~~subject~~subject solely with respect to the real estate located at One MEDIQ Plaza, Pennsauken, New Jersey, the amount and nature oof which and the Borrower's plans with respect to which shall be acceptable to the Lender Parties. 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 MEDIQ's financial reserves shown on the financial statements delivered pursuant to Section 3.01(g)(xi) or that, to the extent not so reflected, the Borrower has made adequate provision for such hazards, costs or liabilities. (xv) A letter, in form and substance satisfactory to the Administrative Agent, from the Borrower to Deloitte & Touche 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 through the Administrative Agent 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) A Borrowing Base Certificate dated as of August 31, 1996. (xviii) Landlord consents from the Persons listed in Schedule 3.01(g)(xviii) in form and substance satisfactory to the Administrative Agent. (xix) A termination letter from each of the Persons listed on Schedule 3.01(g)(xix)(1) to the Administrative Agent relating to the satisfaction and termination of the Existing Debt listed on Schedule 3.01(g)(xix)(2) and the release of all collateral and security interests relating thereto. (xx) A favorable opinion of Drinker, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Loan Parties, in substantially the form of Exhibit I hereto. (xxi) A favorable opinion from each of the counsel to the Loan Parties listed on Schedule 3.01(g)(xxi). (xxii) A favorable opinion of Shearman & Sterling, counsel for the Agents, in form and substance satisfactory to the Administrative Agent. (xxiii) A favorable opinion of Saiber, Schlesinger, Satz & ▇▇▇▇▇▇▇▇▇, New Jersey counsel to the Lender Parties. (xxiv) Federal Reserve Forms U-1 provided for in Regulation U, as applicable, the statements made in which shall be such as to permit the transactions contemplated hereby in accordance with Regulation U; and Federal Reserve Forms G-3 provided for in Regulation G, as applicable, the statements made in which shall be such as to permit the transactions contemplated hereby in accordance with Regulation G. (h) The Supplemental Indenture shall have become effective.

Appears in 1 contract

Sources: Credit Agreement (Mediq Inc)

Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an a Regular 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any ~~waiver~~ waiver, modification, revision or amendment since the delivery of the Lenders' Commitments not consented to by the ~~Lender Parties~~ Lenders (such consent not to be unreasonably withheld) of any ~~material~~ term, provision or condition set forth ~~therein~~therein in any material respects, and in ~~material~~ compliance with all applicable ~~laws~~laws and all applicable waiting periods. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (d) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (e) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995. (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) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of the Merger, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have ~~paid~~ authorized from the proceeds of the Initial Extension of Credit the payment of all accrued fees of the Agents and the Lenders and all accrued expenses of the ~~Agent and the Lender Parties~~ Agents (including the accrued fees and expenses of Shearman & Sterling, counsel to the ~~Agent~~ U.S. Administrative Agent, and Tory Tory DeLauriers & Binnington, local counsel to the ~~Lender Parties~~Lenders), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇al ▇▇▇ ▇▇▇▇▇▇ed detailed invoices prior to the Effective Date. (kd) The U.S. Administrative Agent shall have received on or before the ~~day of the Initial Extension of Credit~~ Effective Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Agent~~ Lenders (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. (ii) Certified copies of the resolutions of the Board of Directors of each ~~Borrower~~Loan Party approving this Agreement, the Notes and each other Loan ~~Party approving the Merger, this Agreement, the Notes, each other Loan Document and each Related~~ 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 Merger,~~ this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ Document. (iii) A copy of a certificate of the Secretary of State of the ~~jurisdiction~~ state of ~~its incorporation~~incorporation of each Loan Party incorporated in the United States, dated reasonably near the ~~date of the Initial Extension of Credit~~Funding Date, listing the charter of ~~each Borrower and each other~~ such Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such ~~Borrower's or such other~~ Loan Party's charter on file in his office, (B) ~~each Borrower and each other~~ such Loan Party ~~have~~ has paid all franchise taxes to the date of such certificate and (C) ~~each Borrower and each other~~ such Loan Party ~~are~~ is duly incorporated and in good standing under the laws of the ~~State~~ state of ~~the jurisdiction of its~~ such Loan Party's incorporation. (iv) ~~Certified copies of a~~ A certificate of ~~merger or other confirmation from~~ compliance issued under the ~~Secretary of State~~ Canada Business Corporations Act with respect to each of the ~~State~~ Loan Parties incorporated under the laws of ~~Delaware satisfactory to the Lender Parties~~ Canada, together with a certified copy of the ~~consummation~~ articles of ~~the Merger~~each such Loan Party. (v) A certificate of each ~~Borrower and each other~~ Loan Party, ~~signed on behalf of such Borrower or such other Loan Party, as the case may be, by its President or a Vice President and its Secretary or any Assistant Secretary,~~ dated the ~~date of the Initial Extension of Credit (~~Funding Date, the statements made in which certificate shall be true on and as of the ~~date~~ Funding Date, signed on behalf of ~~the Initial Extension of Credit)~~such Loan Party, (A) by its Secretary or any Assistant Secretary, certifying as to (Ax) the absence of any amendments to the charter of such ~~Borrower or such other~~ Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.02(d)(iii) or the certified copy of the articles referred to in Section 3.02(d)(iv), (By) a true and correct copy of the bylaws of such ~~Borrower or such other~~ Loan Party as in effect on the ~~date of the Initial Extension of Credit~~Funding Date, (Cz) ~~the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and~~ the absence of any proceeding for the dissolution or liquidation of such ~~Borrower~~ Loan Party and (B) by its treasurer, chief financial officer, president or ~~such other Loan Party~~any vice president, certifying as to (Dx) 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~~ Funding Date and (Ey) the absence of any event occurring and ~~continuing, or resulting from the Initial Extension of Credit,~~ continuing that constitutes a Default. (vi) A certificate of the Secretary or an Assistant Secretary of each ~~Borrower and each other~~ Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other~~ Loan Party authorized to sign this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) Certified copies of each of the Related ~~Documents~~Documents and the Prudential Guarantee, 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. (~~xii~~viii) Such financial, business and other information regarding each Loan Party and ~~its~~ their respective Subsidiaries as the ~~Lender Parties~~ Lenders shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under ~~Plans, Multiemployer Plans~~ ERISA and Welfare Plans, collective bargaining agreements and other arrangements with employees. (ix) Evidence satisfactory to the Lenders that all Obligations in respect of Debt outstanding under the Existing Credit Agreements are being prepaid, ~~audited annual financial statements~~ redeemed or defeased in full from the proceeds of ~~Crompton Corp.~~ the Initial Extension of Credit, or otherwise satisfied and ~~its Subsidiaries~~ extinguished (~~other than Uniroyal Corp.~~ subject to the survival of provisions relating to indemnifications, taxes and ~~its Subsidiaries~~increased costs, to the extent set forth therein), and the "Commitments" (as defined in each Existing Credit Agreement) ~~dated December 30~~under the Existing Credit Agreements have been terminated. (x) A letter from the Process Agent, ~~1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements~~ dated the ~~end of the most recent fiscal quarter for which financial statements are available~~Effective Date, ~~pro forma financial statements~~ agreeing to act as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the BorrowersProcess Agent, in form and substance satisfactory to the ~~Lender Parties~~Lenders. (xi) The Disclosure Letter, ~~on a Consolidated basis and~~duly executed by each Loan Party. (xii) A favorable opinion of Blake, ~~to the extent otherwise available~~Cassels & Graydon, ~~on a Consolidating basis, of balance sheets, income statements and cash flow statements~~ Canadian counsel for the ~~first year following January 1~~Loan Partie▇, ~~1996~~ ▇▇ ▇ubs▇▇▇▇▇▇▇ly the form of Exhibit E hereto and ~~on an annual basis for each year thereafter until~~ as to such other matters as any Lender or any Agent through the ~~Termination Date~~U.S. Administrative Agent may reasonably request. (xiii) ~~Certificates~~A favorable opinion of Tory Tory DeLauriers & Binnington, Canadian counsel for the ▇▇▇▇▇▇▇, ▇▇ ▇▇▇stantially the form of Exhibit F hereto and as to such other matters as any Lender or any Agent through the U.S. Administrative Agent may reasonably request. (xiv) A favorable opinion of Sidley & Austin, special counsel for the Loan Parties, in substantially the form of Exhibit ~~G, attesting~~ G hereto and as to such other matters as any Lender or any Agent through the ~~Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer~~U.S. Administrative Agent may reasonably request. (~~xiv~~xv) A ~~supplement to the Uniroyal Security Agreement in respect~~ favorable opinion of ~~Collateral located in the State~~ Marschall I. Smith, General Counsel of ~~Louisiana~~ Global, with res▇▇▇▇ ▇▇ ▇a▇▇ ▇▇▇▇ Party, in substantially the form of Exhibit ~~D-3 (~~H hereto and as ~~amended, supplemented~~ to such other matters as any Lender or ~~otherwise modified from time to time in accordance with its terms,~~ any Agent through the ~~"Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors~~U.S. Administrative Agent may reasonably request. (xvxvi) ~~An environmental assessment report~~A favorable opinion of Fraser & Beatty, Canadian counsel for the Loan Parties, in subst▇▇▇▇▇▇ly the form of Exhibit J hereto and as to such other matters as any Lender or any Agent through the U.S. Administrative Agent may reasonably request. (xvii) A favorable opinion of Shearman & Sterling, counsel for the Lenders, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oLenders.

Appears in 1 contract

Sources: Credit Agreement (Imc Global Inc)

Conditions Precedent to Initial Extension of Credit. The obligation of ~~each~~ Lender to make an the initial Advance (or of otherwise to extend any ~~Issuing Bank to issue a Letter of Credit~~ credit provided for hereunder on the ~~occasion of the Initial Extension of Credit hereunder~~ Closing Date) is subject to the prior fulfillment, to the satisfaction of Lender in its sole discretion, of each of the ~~following~~ conditions precedent ~~before or concurrently with the Initial Extension of Credit~~set forth below: (a) ~~The Merger~~ the transactions contemplated under the Purchase and Sale Documents shall have been consummated ~~substantially~~ in accordance with the terms ~~of the Merger Agreement~~thereof, without ~~any~~ waiver ~~or amendment not consented to by the Lender Parties~~ of any material ~~term, provision or~~ condition ~~set forth therein, and in material compliance with all applicable laws.~~by Lender; (b) ~~The Merger Agreement~~ Lender shall have received a certified true, accurate and complete copy of the Senior Credit Agreement, all of which shall be satisfactory to Lender, which is in full force and effect; (c) Lender shall have received the following duly executed and delivered Loan Documents, in form and substance satisfactory to Lender, and each such document shall be in full force and effect.: (ci) ~~The Lender Parties shall be satisfied~~ this Agreement (with all exhibits and schedules attached); (ii) the ~~corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including~~ Revolving Credit Note; (iii) the ~~terms and conditions of~~ EPI Intercreditor & Subordination Agreement; (iv) the ~~charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement~~ ▇▇▇▇▇▇▇▇ Family Intercreditor & Subordination Agreement; and (v) any other documents or ~~instrument relating to such structure or capitalization~~agreements required by Lender. (d) ~~The Lender Parties~~ no “default” or “event of default” (as such terms or similar terms are defined in any of (i) the Senior Credit Agreement, (ii) the ▇▇▇▇▇▇▇▇ Family Notes or (iii) the EPI Notes) shall have occurred and be ~~satisfied that all Existing Debt~~continuing on the date of such Advance, ~~other than~~ or shall result from the ~~Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.~~making of such Advance; (e) ~~There~~ Lender shall have ~~occurred no material adverse change in~~ received a pro forma Compliance Certificate dated as of the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995.Closing Date; (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) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of the Merger, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there Lender shall have ~~been no material adverse change~~ received the Solvency Certificate and Lender shall otherwise be satisfied, in its Permitted Discretion, with the ~~status, or financial effect on any Loan Party or any~~ capital structure of Borrower and its ~~Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(f).~~Affiliates; (g) ~~The~~ Lender ~~Parties~~ shall have ~~completed~~ received a ~~due diligence investigation~~ certificate from the Secretary of Borrower attesting to and attaching the ~~Borrowers and their respective Subsidiaries in scope~~resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and ~~with results, satisfactory~~ performance of this Agreement and the other Loan Documents to which such Person is a party and authorizing specific officers of Borrower to execute 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, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested.same; (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent Lender shall have ~~a valid~~ received Shareholder Consents from at least 85% of all shareholders of Borrower and ~~perfected first priority lien~~ copies of all consents, approvals, and registrations described on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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.Schedule 4.5; (i) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender Parties). (k) The Agent shall have received on copies of Borrower’s Governing Documents, as amended, modified, or ~~before~~ supplemented to the ~~day~~ Closing Date, certified by the Secretary of ~~the Initial Extension of Credit the following, each dated such day (unless otherwise specified)~~Borrower, in form and substance satisfactory to ~~the Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:~~Lender; (ij) ~~The Notes payable to the order~~ Lender shall have received a certificate of the Lenders. (ii) Certified copies of the resolutions of the Board of Directors of each Borrower, and each other Loan Party approving the Merger, this Agreement, the Notes, each other Loan Document and each Related 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, status with respect to ~~the Merger~~Borrower, ~~this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate~~ dated within 10 days of the ~~Secretary of State~~ Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of ~~its incorporation~~organization of Borrower, ~~dated reasonably near the date of the Initial Extension of Credit, listing the charter of each~~ which certificate shall indicate that Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and is in good standing ~~under the laws of the State of the jurisdiction of its incorporation.~~in such jurisdiction; (ivk) ~~Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger.~~Reserved; (vl) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower or such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated received the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the BorrowersBusiness Plan, in form and substance satisfactory to Lender in their Permitted Discretion; (m) Borrower shall have paid all Lender Expenses incurred in connection with the transactions evidenced by this Agreement; (n) Lender ~~Parties~~shall have received evidence satisfactory to it in its Permitted Discretion that Borrower has received all consents, on licenses, approvals or evidence of other actions required by any Person, including any Governmental Authority, in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby or thereby; (o) Lender shall have received an Officer’s Closing Certificate dated as of the Closing Date, the form and substance of which shall be satisfactory to Lender; (p) Lender shall have received a ~~Consolidated basis~~ certified copy of the following: (i) ▇▇▇▇▇▇▇▇ Family Notes and the EPI Notes; (ii) evidence of the termination and cancellation of (A) the warrants issued by Borrower and (B) the Preferred Stock; and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date (iii) any Shareholder Agreements. (~~xiii~~q) ~~Certificates,~~ all other documents and legal matters in ~~substantially~~ connection with the ~~form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other~~ transactions contemplated ~~hereby~~by this Agreement shall have been delivered, ~~from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended~~executed, ~~supplemented~~ or ~~otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower~~ recorded and ~~the Uniroyal Guarantors. (xv) An environmental assessment report,~~ shall be in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oLender.

Appears in 1 contract

Sources: Subordination Agreement (American Greetings Corp)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (ci) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of ~~the charter, bylaws~~ their respective Constitutive Documents and each class of 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~~capitalization and (ii) 100% of the capital stock of Afa Polytek B.V., a corporation organized under the laws of the Netherlands, shall have been contributed to the Borrower. (b) All of the Related Documents shall be in full force and effect, in form and substance satisfactory to the Lender Parties and no amendment or waiver thereof, or consent to departure from any provision thereof, shall have been made, unless satisfactory to the Lender Parties. (c) The Acquisition shall have been consummated or shall be consummated concurrently with the Initial Extension of Credit, in accordance with the terms of the Purchase Agreement, and in compliance with all applicable Requirements of Law; the purchase price paid for the Acquired Business shall be equal to $93,670,000, $2,000,000 of which will be held in escrow pursuant to an agreement between the Seller and the Borrower; on the Closing Date, the Seller will have made a cash payment to the Borrower pursuant to Section 7.12A of the Purchase Agreement equal to 30.3% of the fees charged to the Borrower for providing the Facilities; no fees or similar amounts payable by the Borrower to the Owners in connection with the Acquisition shall have been paid; and the aggregate fees and expenses incurred or to be incurred by the Borrower and its Subsidiaries in connection with the Acquisition shall not have exceeded $4,600,000; all such fees and expenses shall have been disclosed on an itemized basis 48 to the Administrative Agent and all such fees and expenses shall be on terms and conditions and in amounts satisfactory to the Administrative Agent. (d) All of the governmental authorizations, and all of the consents, approvals and authorizations of, and notices and filings to or with, and other actions by, any other Person necessary in connection with any aspect of the Acquisition, any of the Loan Documents or the Related Documents or any of the other transactions contemplated thereby, other than the governmental authorizations, and the consents, approvals, authorizations, notices, filings and other actions described on Schedule 4.01(d) hereto, shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in full force and effect; and all applicable waiting periods shall have expired without any action being taken by any competent authority. (e) The Lender Parties shall be satisfied that (i) after giving effect to the Acquisition, the aggregate Unused Revolving Credit Commitments shall not be less than $27,500,000 and (ii) all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~4.01(ff) hereto (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties. (ef) ~~There~~ Before giving effect to the Acquisition and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) ~~before and after giving effect to~~ the ~~Merger and~~ Borrower or the ~~other transactions contemplated by this Agreement, Crompton Corp.~~ Borrower and its ~~Subsidiaries,~~ Subsidiaries taken as a ~~whole,~~ whole since December 31, ~~1995,~~ 1996 and (ii) ~~after giving effect to~~ the ~~Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole,~~ Acquired Business since ~~December~~ May 31, ~~1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995~~1997. (fg) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan ~~Party~~ Party, Owner or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule ~~3.01(f~~3.01(g) hereto (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of the ~~Merger~~Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the Acquisition or the transactions contemplated ~~hereby~~thereby, and there shall have been no ~~material~~ adverse change in the status, or financial effect on any Loan ~~Party~~ Party, Owner or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule ~~3.01(f~~3.01(g). (gh) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ 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, (ii) that, following the consummation of the ~~Merger~~Acquisition, ~~Crompton Corp.~~ the Borrower and its Subsidiaries would not have good and marketable title to all material assets of ~~Uniroyal Corp. and~~ the Borrower, its Subsidiaries and the Acquired Business reflected in the Information Memorandum and (iii) that the ~~Merger~~ Acquisition 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 ~~Borrowers~~ Borrower and ~~their respective~~ its Subsidiaries and of the Seller relating to the Acquired Business as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The ~~Borrowers~~ Borrower shall have paid all accrued fees and expenses of the Administrative Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel to the Lender Parties). 49 (j) The Borrower shall have executed the Fee Letter, and such letter shall be in full force and effect and the Borrower shall not have breached any of its obligations thereunder. (k) The warrants held by NationsCredit pursuant to the Warrant expiring July 29, 2007 for the purchase of shares in the Parent shall have been amended and restated on terms and conditions satisfactory to the Lender Parties and the warrantholders rights agreement related thereto (collectively, as amended, supplemented or otherwise modified from time to time, the "Second Warrant Agreement") shall have been delivered to the Administrative Agent; and the warrants held by Wald▇▇▇, ▇▇mited, a corporation organized under the laws of the British Virgin Islands, pursuant to the Warrant expiring July 29, 2007, for the purchase of shares in the Parent shall have been amended and restated on terms and conditions satisfactory to the Lender Parties and such Warrant (collectively, as amended, supplemented as otherwise modified from time to time, the "Wald▇▇▇ ▇▇▇rant Agreement") shall have been delivered to the Administrative Agent. (l) The Debt owing by AFA Products, Inc. to Afa International Limited and Wald▇▇▇ ▇▇▇ited shall have been refinanced with the proceeds of the Subordinated Notes issued by the Parent. (m) An underwriter reasonably satisfactory to the Administrative Agent shall have been engaged in connection with the Refinancing. (n) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to 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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower and each other Loan Party approving the ~~Merger~~Acquisition and the other transactions contemplated by the Loan Documents, this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a party, and of all documents evidencing other necessary corporate (or the equivalent thereof) action and governmental and other third party approvals and consents, if any, with respect to the ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and each Related ~~Document~~Document to which it is or is to be a party. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of ~~its incorporation~~organization of each Loan Party, dated reasonably near the date of the Initial Extension of Credit, ~~listing~~ certifying as to (A) a true and correct copy of the charter of ~~each Borrower and each other~~ such Loan Party and each amendment thereto on file in his office and ~~certifying~~ that (AB) (1) such amendments are the only amendments to such ~~Borrower's or such other~~ Loan Party's charter on file in his office, (B2) ~~each Borrower and each other~~ such Loan Party ~~have~~ has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C3) ~~each Borrower and each other~~ such Loan Party ~~are~~ is duly incorporated and in good standing under the laws of the State of the jurisdiction of its ~~incorporation~~organization. (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State (or the equivalent governmental authority) of each jurisdiction in which any Loan Party is qualified or licensed as a foreign corporation dated reasonably near the date of the Initial Extension of Credit, stating that such Loan Party is duly qualified and in good standing as a foreign corporation in such State ~~of Delaware satisfactory~~ and has filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger.~~such certificate. 50 (v) A certificate of ~~each Borrower~~ the Borrower, and each other Loan Party, signed on behalf of ~~such~~ the Borrower or and such other Loan ~~Party, as the case may be,~~ Party 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~~ the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(n)(iii), (B) a true and correct copy of the bylaws (or similar Constitutive Document) of ~~such Borrower or~~ the Borrower, and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due ~~incorporation~~ organization and good standing of ~~such~~ the Borrower or and such other Loan Party as a Person organized under the laws of the State of the jurisdiction of its ~~incorporation~~organization, and the absence of any proceeding for the dissolution or liquidation of ~~such~~ the Borrower or such other 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, both before and after giving effect to the transactions contemplated hereby, and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (vi) A certificate of the Secretary or an Assistant Secretary of ~~each Borrower~~ the Borrower, and each other Loan Party certifying the names and true signatures of the officers of ~~such~~ the Borrower or and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit ~~D-1~~ D hereto (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor as debtor, together with ~~copies of such~~ each other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by ~~the Uniroyal Borrower and~~ each ~~Uniroyal Guarantor~~Loan Party, together with: (A) ~~duly~~ 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) proper financing statements, completed in a manner satisfactory to ~~be filed~~ the Lender Parties and duly executed by the applicable Loan Party on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions 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 ~~Uniroyal~~ Security ~~Agreement~~Agreement and the Mortgages, covering the Collateral described in the ~~Uniroyal~~ Security ~~Agreement~~Agreement and the Mortgages, (BC) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all of the effective financing statements filed in the jurisdictions referred to in clause (AB) above that name the ~~Uniroyal~~ Borrower or any ~~Uniroyal Guarantor~~ other Loan Party as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) ~~instruments evidencing~~ copies of the ~~Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ Assigned Agreements referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, ~~and~~ together with a consent to such assignment, in substantially the form of 51 Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, (~~F)evidence~~ F) evidence that all other 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 ~~Uniroyal~~ Security Agreement has been taken. (ixviii) A guaranty in substantially the form of Exhibit ~~E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"),~~ E hereto duly executed by ~~Crompton Corp. (x) A guaranty in substantially~~ each of the ~~form of Exhibit E-2~~ Subsidiary Guarantors (together with each other guaranty of any such entity delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty")~~, duly executed by each Subsidiary Guarantor~~. (xiix) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, A guaranty in substantially the form of Exhibit ~~G, attesting to~~ F hereto duly executed by the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 Parent (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Louisiana Undertaking~~Parent Guaranty"). (x) Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in form and substance satisfactory to the Administrative Agent and covering the properties listed on Schedule 3.01(n)(x) hereto (the "Mortgaged Property") (together with each other mortgage delivered pursuant to Section 5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with their terms, the "Mortgages"), duly executed by the ~~Uniroyal Borrower and the Uniroyal Guarantors.~~applicable Loan Party, together with: (xvA) ~~An environmental assessment report,~~ fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies") in form and ~~substance~~ substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances, and 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) American Land Title Association form surveys for the properties listed on Schedule 3.01(n)(x)(B) hereto (the "Surveyed Property"), dated as of 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 ~~Lender Parties~~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, ~~from Environmental Safety~~ showing all buildings and ~~Designs~~other improvements, ~~Inc.~~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, (C) to the extent applicable, the Assignments of Leases and Rents referred to in the Mortgages, duly executed by the applicable Loan Party, 52 (D) such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as ~~to any hazards, costs~~ the Administrative Agent may deem necessary or ~~liabilities under Environmental Laws to which any Loan Party or any~~ desirable, (E) evidence of ~~its Subsidiaries may be subject,~~ the ~~amount and nature o~~insurance required by the terms of

Appears in 1 contract

Sources: Credit Agreement (Afa Products Inc)

Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an ~~Advance or~~ Advance, of ~~any~~ the Issuing Bank to issue a Letter of Credit and of the Canadian Lenders to accept and/or purchase Bankers' Acceptances on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit: (a) The ~~Merger~~ Purchase Agreement shall be in full force and effect and the Acquisition and the other transactions contemplated by this Agreement shall have been consummated ~~substantially~~ strictly in accordance with the terms of the ~~Merger Agreement,~~ Purchase Agreement and all other related documentation without any waiver or amendment not consented to by the Lender Parties of any ~~material~~ term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws, and the Agent shall be satisfied (i) with the terms and conditions of the Related Documents in all material respects and (ii) that the assets and earnings of the Borrower and the Canadian Borrower are sufficient to support the Obligations of the Borrower and the Canadian Borrower under this Agreement and the timely amortization of all Debt and other Obligations of the Borrower and the Canadian Borrower. (b~~) The Merger Agreement shall be in full force and effect. (c~~) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of ~~each~~ the Loan ~~Party and each of its Subsidiaries~~Parties, including the terms and conditions of the charter, bylaws and each class of capital stock of ~~each~~ the Loan ~~Party and each such Subsidiary~~ Parties and of each agreement or instrument relating to such structure or capitalization. (d) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (ec) There shall have ~~occurred~~ been no ~~material adverse change in the business~~event, condition ~~(financial~~ or ~~otherwise), operations, performance, properties~~ circumstance that has resulted in or ~~prospects of (i) before and after giving effect~~ is reasonably likely to result in a Material Adverse Change with respect to the ~~Merger and the other transactions contemplated by this Agreement, Crompton Corp.~~ Borrower and its Subsidiaries, taken as a whole, since December 31, ~~1995~~1998, ~~(ii) after giving effect~~ or with respect to the ~~Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries)~~Acquired Businesses, taken as a whole, since ~~December~~ March 31, ~~1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995~~1999. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its properties or any of its Subsidiaries or any of their properties pending or threatened before any court, governmental agency or arbitrator that (i) ~~would be reasonably likely to~~ could have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement~~, any Note~~, any other Loan Document, any Related Document or the consummation of the transactions contemplated ~~hereby~~hereby and thereby. (e) [Intentionally Omitted]. (f) The Agent shall be satisfied that all Existing Debt, ~~and there shall have been no material adverse change in~~ other than the ~~status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described~~ Debt identified on Schedule 3.01(f) (the "Surviving Debt")~~. (g) The Lender Parties~~ , has been -------------- prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Surviving Debt shall ~~have completed a due diligence investigation of the Borrowers~~ be on terms and ~~their respective Subsidiaries in scope, and with results,~~ conditions 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, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) Agent. All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and of local counsel to the Lender Parties)) payable by the Borrower hereunder and all fees and expenses payable or otherwise borne by the Borrower in connection with the issuance of the Subordinated Notes shall have been paid, and the Agent shall be satisfied that the amount of such fees and expenses shall not exceed $15,000,000. (kg) The Agent shall have received on or before the ~~day~~ date of the Initial Extension of ~~Credit~~ Credit, the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Agent (unless otherwise specified) and (except for ~~the Notes~~any Notes or Drafts) 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 2.17. (ii) Presigned Drafts delivered pursuant to Section 2.04(f) hereof. (iii) A Notice of Borrowing. (iv) Certified copies of the resolutions (or analogous authorizations) of the Board of Directors (or other authorized legal representatives) of ~~each~~ the Borrower, the Canadian Borrower, the Parent Guarantor, each Subsidiary Guarantor and each other Loan Party approving ~~the Merger,~~ this Agreement~~, the Notes~~, each other Loan Document and each Related 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 Merger,~~ this Agreement~~, the Notes~~, each other Loan Document and each Related Document. (~~iii~~v) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, in each case listing the charter of the Borrower, the Parent Guarantor, each ~~Borrower~~ Subsidiary Guarantor and each other Loan Party 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 ~~Borrower's or such other Loan Party's~~ charter on file in his office, (BC) ~~each Borrower and each other Loan Party have~~ such Person has paid all franchise taxes to the date of such certificate and (CD) ~~each Borrower and each other Loan Party are~~ such Person is duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (ivA) ~~Certified copies~~ A certificate of the Canadian Borrower certifying as to a true and correct copy of the articles of incorporation or amalgamation of the Canadian Borrower, together with any amendments thereto, and (B) a certificate of status of the Province of Ontario stating that the Canadian Borrower is a corporation incorporated, amalgamated or continued under the laws of the Province of Ontario and has not been dissolved. (vii) A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of the ~~State of Delaware satisfactory~~ states listed on Schedule 3.01(g)(vii) with respect to the ~~Lender Parties~~ Borrower and each Subsidiary Guarantor, dated reasonably near the date of the ~~consummation~~ Initial Extension of Credit, stating that the ~~Merger~~Borrower and each such Subsidiary Guarantor is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (vviii) A certificate of each ~~Borrower~~ of the Borrower, the Canadian Borrower, the Parent Guarantor, each Subsidiary Guarantor and each other Loan Party, signed on behalf of such ~~Borrower or~~ Person by any two officers of such ~~other Loan Party, as the case may be, by its President or a Vice President and its Secretary or any Assistant Secretary~~Person, 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 ~~Borrower or such~~ Person since, in the case of the Canadian Borrower, the date of the certificate of status of the Province of Ontario referred to in Section 3.01(g)(vi)(B) and, in the case of each other Loan ~~Party since~~ Party, the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(g)(v), (B) a true and correct copy of the bylaws of such ~~Borrower or such other Loan Party~~ Person as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such ~~Borrower or such other Loan Party~~ Person as a corporation organized under the laws of the ~~State~~ jurisdiction of its ~~incorporation,~~ incorporation and the absence of any proceeding for the dissolution or liquidation of such ~~Borrower or such other Loan Party~~Person, (D) the ~~truth~~ completeness and accuracy 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 (E) the absence of any event occurring and ~~continuing, or resulting from the Initial Extension of Credit,~~ continuing that constitutes a Default. (viix) A certificate of ~~the Secretary or~~ an ~~Assistant Secretary~~ officer of each ~~Borrower~~ of the Borrower, the Canadian Borrower, the Parent Guarantor, each Subsidiary Guarantor and each other Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other Loan Party~~ Persons authorized to sign this Agreement~~, the Notes~~, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (~~vii~~x) A security agreement in substantially the form of Exhibit ~~D-1~~ D (together with each other security agreement delivered pursuant to Section 5.01(m), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Crompton~~ Security -------- Agreement"), duly executed by ~~each Crompton~~ the Borrower and each ~~Crompton~~ Subsidiary --------- Guarantor, together with: (A) certificates representing the Existing Pledged Shares referred to therein accompanied by undated stock powers executed in blank~~, and instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank~~, (B) ~~duly executed~~ copies of proper financing statements, ~~to be filed~~ under the Uniform Commercial Code of the states listed in Schedule 3.01(g)(x)(A) and all other jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens and security interests~~ Liens created under the ~~Crompton Security Agreement~~Collateral Documents, covering the Collateral described in the ~~Crompton~~ Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions ~~referred to~~ listed in ~~clause (B~~Schedule 3.01(g)(x)(B) ~~above~~ that name ~~any Crompton~~ the Borrower ~~or any Crompton~~ and each Subsidiary Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (DE) evidence of the insurance required by the terms of the Security Agreement, naming the Agent as additional insured and loss payee, in such amounts and covering such risks, as is satisfactory to the Agent, including, without limitation, business interruption insurance together with a certificate from a representative of an insurance company or from an independent insurance consultant confirming that the coverages are normal and customary for corporations comparable to the Borrower and each Subsidiary Guarantor, (EF) ~~instruments evidencing~~ copies of the ~~Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ Assigned Agreements referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, (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 Agent may deem desirable in order to terminate or amend existing Liens on the Collateral described in the Security Agreement and the Parent Guarantor Security Agreement, (~~F)evidence~~ H) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the ~~first priority~~ liens and security interests created under the ~~Uniroyal~~ Security Agreement has been taken, and (I) the Blocked Account Letters referred to in the Security Agreement, duly executed by each Blocked Account Bank referred to in the Security Agreement. (xi) A security agreement in substantially the form of Exhibit G (as such agreement may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Canadian Security Agreement"), duly executed by the Canadian Borrower, together with evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the liens and security interests created under the Canadian Security Agreement has been taken. (ixxii) A ~~guaranty~~ security agreement in substantially the form of Exhibit ~~E-1~~ E (as such agreement may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guarantor ---------------- Security Agreement"), duly executed by the Parent Guarantor, together ------------------ with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank, and (B) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the liens and security interests created under the Parent Guarantor Security Agreement has been taken. (xiii) An intellectual property security agreement in substantially the form of Exhibit F (together with each other intellectual property security agreement delivered pursuant to Section 5.01(m), as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Intellectual Property Security ------------------------------ Agreement"), duly executed by the Borrower and each Subsidiary --------- Guarantor, together with evidence that all action that the Agent may deem 77 necessary or desirable in order to perfect and protect the first priority lien and security interests created under the Intellectual Property Security Agreement has been taken. (xiv) Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit J and covering the properties and Material Leases listed on Schedule 4.01(gg) (other than the properties listed on Schedule 5.01(m)) and Schedule 4.01(hh) (together with each other mortgage delivered pursuant to Section 5.01(m), in each case as amended, supplemented or otherwise modified from time to time in accordance with their terms, the "Mortgages"), duly executed by the applicable Loan Party, together --------- with: (A) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies") or commitments in writing to issue such ----------------- policies in form and substance, with endorsements and in amount acceptable to the Agent, issued, coinsured and reinsured by title insurers acceptable to the Agent, insuring the Mortgages as of the time of the date 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 Agent may deem necessary or desirable, (B) boundary surveys of the properties set forth on Schedule 3.01(g)(xiv)(B) prepared in accordance with American Land Title Insurance standards (except where surveys prepared to state standards are acceptable to the title insurer), dated no more than 30 days before the date of the Initial Extension of Credit, certified to the Agent and the issuer of the Mortgage Policies in a manner satisfactory to the 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 Agent, showing recorded easements and rights of way, unrecorded uses and occupancies observed by the surveyor, encroachments onto the boundary lines and onto the easements and rights of way otherwise shown on the survey, any building setback lines and other dimensional regulations that are set forth in covenants and restrictions that may be of record and certifying that such property is not in a flood hazard area and identifying the flood classification thereof, or, as applicable, locating any portion of such property that is in a flood hazard area, (C) an affidavit of the applicable Loan Party delivered for the benefit of the issuer of the Mortgage Policies stating that, since the date of the survey referenced in the Mortgage Policies in respect of the properties set forth on Schedule 3.01(g)(xiv)(C), (1) the applicable survey shows the property in its present condition, (2) there have been no changes in the boundary lines of the property and (3) no other improvements have been constructed on or next to the property, and stating such other matters as the issuer of the Mortgage Policies may require to omit any exception in the Mortgage Policies relating to changes in the property since the date of the survey, (D) evidence of the insurance required by the terms of the Mortgages, and (E) evidence that all other action that the 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. (xv) A guaranty agreement in substantially the form of Exhibit H (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by ~~Crompton Corp.~~--------------- the Parent Guarantor. (xxvi) A guaranty agreement in substantially the form of Exhibit ~~E-2~~ I (together with each other guaranty and guaranty supplement delivered pursuant to Section ~~5.01(k~~5.01(n), ~~in each case~~ as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by ~~each~~ the Subsidiary ~~Guarantor.~~Guarantors. ------------------- (xixvii) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 odu

Appears in 1 contract

Sources: Credit Agreement (Commercial Aggregates Transportation & Sales LLC)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties Lenders shall be satisfied with the corporate and legal structure and capitalization of ~~each~~ Parent and the Loan ~~Party and each of its Subsidiaries~~Parties, including the terms and conditions of the charter, bylaws and each class of capital stock of ~~each~~ Parent and the Loan ~~Party and each such Subsidiary~~ Parties and of each agreement or instrument relating to such structure or capitalization. (db) ~~The Lender Parties~~ There shall not have occurred (and the Lenders shall not have become aware of) any facts, conditions or other information not previously known which the Lenders shall determine has, or would reasonably be ~~satisfied that all Existing Debt~~expected to have, ~~other than~~ (x) a material adverse effect on the ~~Debt identified~~ rights or remedies of the Agent or the Lenders, or on ~~Schedule 3.01(d~~the ability of Parent or any Loan Party to perform its obligations to the Agent and the Lenders or (y) ~~(the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished~~a Material Adverse Effect. (ec) ~~There~~ All material governmental (domestic and foreign) and third party approvals and/or consents necessary in connection with the consummation of the Refinancing Transactions and the other transactions contemplated hereby shall have ~~occurred no material~~ been (or will, within the time frame required, be) obtained and remain in full effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse ~~change in~~ conditions upon the ~~business, condition (financial or otherwise), operations, performance, properties or prospects~~ consummation of ~~(i) before and after giving effect to~~ the ~~Merger~~ Refinancing Transactions and the other transactions contemplated by this ~~Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger~~ Agreement and the other Documents or otherwise referred to herein or therein. Additionally, there shall not exist any judgment, order, injunction or other restraint issued or filed by any court of competent jurisdiction or a hearing seeking injunctive relief or other legal restraint pending or notified in such court prohibiting or imposing materially adverse conditions upon the consummation of the transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries (~~the Notes or any other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995Documents. (fd) There shall exist no action, suit, investigation, litigation or proceeding affecting Parent, any Loan Party or any of its ~~Subsidiaries~~ properties or any Subsidiary of any Loan Party or any of their respective properties pending or threatened before any court, governmental agency or arbitrator that ~~(i) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation") or (ii)~~ purports to affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement, ~~any Note~~the Notes, any other ~~Loan Document, any Related~~ Document or the consummation of the transactions contemplated ~~hereby~~hereby or thereby or which the Agent shall determine has, or would reasonably be expected to have, a Material Adverse Effect. (i) The Lenders shall have received evidence, in form, scope and substance satisfactory to them, that all Debt under the Existing Precise Credit Agreement and the Existing Precise Subordinated Notes has been or will be, simultaneously with the transactions contemplated herein, prepaid, redeemed or defeased in full or otherwise satisfied and extinguished, together with all interest thereon and all other amounts owing pursuant thereto. In addition, the creditors under the Existing Precise Credit Agreement and the Existing Precise Subordinated Notes shall have terminated and released all pledges of and security interests in and Liens (if any) on the stock, assets and properties owned by each Loan Party and any of its Subsidiaries and the Agent shall have received such releases of security interests in and Liens on the stock, assets and properties owned by each Loan Party and its Subsidiaries, which releases shall be in form, scope and substance satisfactory to the Agent. Without limiting the foregoing, there shall have been ~~no material adverse change~~ delivered (A) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC of each jurisdiction where a financing statement (Form UCC-1 or the appropriate equivalent) was filed with respect to each Loan Party and its Subsidiaries in connection with the ~~status~~security interests created with respect to such Debt and the documentation related thereto, (B) terminations or assignments of any security interest in, or ~~financial effect~~ Lien on, any patents, trademarks, copyrights, or similar interests of each Loan Party or any of its Subsidiaries on ~~any~~ which filings have been made and (C) terminations of all mortgages, leasehold mortgages and deeds of trust created with respect to the property of each Loan Party or any of its Subsidiaries, all of ~~the Disclosed Litigation from that described on Schedule 3.01(f). (g) The Lender Parties~~ which shall ~~have completed a due diligence investigation of the Borrowers~~ be in form, scope and ~~their respective Subsidiaries in scope, and with results,~~ substance 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, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) Agent. All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have paid all accrued fees and expenses of the Agent and the ~~Lender Parties~~ Lenders (including the accrued fees and expenses of counsel to the Agent and of local counsel to the ~~Lender Parties)~~Lenders) shall have been paid. (kii) The Borrower shall or will simultaneously with the transactions contemplated herein have repurchased, retired or redeemed all of the outstanding Existing Precise Subordinated Notes in accordance with their terms, or on such other terms and conditions as may be satisfactory to the Agent and the Required Lenders and all securities and note purchase agreements pursuant to which the Existing Precise Subordinated Notes were issued shall have been terminated and be of no further force or effect. Notwithstanding anything to the contrary contained in the foregoing, the prepayment premium, if any, in connection with the repurchase, retirement or redemption of the Existing Precise Subordinated Notes shall not exceed, in the aggregate, $2,200,000. (iii) The Borrower shall or will simultaneously with the transactions contemplated herein have redeemed the Existing Precise Redeemable Preferred Stock for an aggregate principal amount not to exceed $8,300,000. (iv) The Borrower shall or will simultaneously with the transactions contemplated herein have repurchased 124 shares of common stock of the Borrower from Parent for an aggregate principal amount not to exceed $3,500,000. (v) The Borrower shall or will simultaneously with the transactions contemplated herein have made a distribution to Parent in an aggregate amount not to exceed $6,500,000. (vi) The Agent shall or will simultaneously with the transactions contemplated herein have received evidence, in form, scope and substance satisfactory to it, that the matters set forth in this Section 3.01(e) have been satisfied on such date. (i) The Borrower shall or will simultaneously with the transactions contemplated herein have received gross cash proceeds in an aggregate principal amount of $75,000,000 from the issuance by the Borrower of a like principal amount of the Senior Subordinated Notes on terms substantially as set forth in the Senior Subordinated Notes Indenture. On the date of the Initial Extension of Credit, and concurrently with the incurrence of Advances on such date, the Borrower shall or will simultaneously with the transactions contemplated herein have utilized the net cash proceeds from the issuance of the Senior Subordinated Notes to effect, in part, the Refinancing Transactions. (ii) All terms of, and documentation for, the Senior Subordinated Notes and the other Senior Subordinated Note Documents (including, without limitation, amortization, maturities, interest rates, covenants, defaults, remedies, sinking fund provisions, subordination provisions and other terms) shall be required to be satisfactory in scope, form and substance to the Agent, it being understood and agreed that in any event the Senior Subordinated Notes shall be unsecured but may be guaranteed on a senior subordinated basis by the Subsidiaries of the Borrower. On the date of the Initial Extension of Credit, there shall have been delivered to the Agent true and complete copies of all Senior Subordinated Note Documents. (g) The Agent shall have received on or before the day of the Initial Extension of Credit (unless otherwise specified) the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the 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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each~~ the Borrower, each Guarantor and each other Loan Party approving ~~the Merger,~~ this Agreement, the Notes, the Mortgages and each other ~~Loan Document and each Related~~ 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 Merger,~~ this Agreement, the ~~Notes,~~ Notes and each other ~~Loan Document and each Related~~ Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of ~~its incorporation~~incorporation of the Borrower, each Guarantor and each other Loan Party, dated on or reasonably near the date of the Initial Extension of Credit, in each case listing the charter of ~~each Borrower and each other Loan Party~~ such Person 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 ~~Borrower's or such other Loan Party's~~ charter on file in his office, (BC) ~~each Borrower and each other Loan Party have~~ such Person has paid all franchise taxes to the date of such certificate and (CD) ~~each Borrower and each other Loan Party are~~ such Person is duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of the ~~State~~ States of ~~Delaware satisfactory~~ New York, Pennsylvania, Illinois, Indiana, Florida, Massachusetts and Missouri dated on or reasonably near the date of the Initial Extension of Credit, stating that each Loan Party that does business in such state is duly qualified and in good standing as a foreign corporation in such state and has filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (v) A certificate of the Borrower, each ~~Borrower~~ Guarantor and each other Loan Party, signed on behalf of such ~~Borrower or such other Loan Party, as the case may be,~~ Person 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 ~~Borrower or such other Loan Party~~ Person since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(g)(iii), (B) a true and correct copy of the bylaws of such ~~Borrower or such other Loan Party~~ Person as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such ~~Borrower or such other Loan Party~~ Person as a corporation organized under the laws of the ~~State~~ jurisdiction of its ~~incorporation,~~ incorporation and the absence of any proceeding for the dissolution or liquidation of such ~~Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of the Borrower, each ~~Borrower~~ Guarantor and each other Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other Loan Party~~ Persons authorized to sign this Agreement, the ~~Notes,~~ Notes and each other ~~Loan Document and each Related~~ Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (~~vii~~A) A pledge and security agreement in substantially the form of Exhibit ~~D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement")~~D-1, duly executed by each ~~Crompton Borrower~~ Loan Party and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) ~~duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect~~ a pledge and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit ~~D-2~~ D-2, duly executed by Parent (~~as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and,~~ together with ~~the Crompton Security Agreement~~ each other pledge and ~~each~~ security agreement delivered pursuant to Section ~~5.01(k~~5.01(m) or 5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, collectively, the "Security Agreement"), ~~duly executed by the Uniroyal Borrower and each Uniroyal Guarantor,~~ together with: (A1) ~~duly~~ certificates representing the Pledged Shares and the Pledged Debt referred to therein accompanied, in the case of the Pledged Shares, by undated stock powers executed in blank, (2) acknowledgment copies or stamped receipt copies of proper financing statements, to be duly filed on or ~~before~~ within a short time after the day of the Initial Extension of Credit under the ~~Uniform Commercial Code~~ UCC of the States of New York, Pennsylvania, Illinois, Indiana, Delaware, Florida, Massachusetts and Missouri and all other jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens and security interests~~ Liens created under the ~~Uniroyal Security Agreement~~Collateral Documents, covering the Collateral described in the ~~Uniroyal~~ Security Agreement, (B3) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (2) next above and all other effective financing statements filed in the jurisdictions referred to in clause (A2) next above that name ~~the Uniroyal Borrower or any Uniroyal Guarantor~~ each Loan Party as debtor, together with copies of such other financing statements, (C4) ~~evidence of the completion~~ duly executed copies in proper form to be filed of all ~~other~~ recordings and filings of or with respect to the ~~Uniroyal~~ Security Agreement that the Collateral Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D5) evidence of the insurance required by the terms of the Security Agreement, (E6) ~~instruments evidencing~~ unless already provided pursuant to Section 3.01(e), executed termination statements (Form UCC-3 or a comparable form), in proper form to be duly filed on the ~~Pledged Debt~~ date of the Initial Extension of Credit under the UCC of all jurisdictions that the Collateral Agent may deem desirable in order to terminate or amend existing Liens on the Collateral described in the Security Agreement except for Permitted Liens, and (~~except as otherwise provided in Sections 5.02(b)(i)(D~~7) ~~and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence~~ evidence that all other action that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~first priority liens~~ Liens and security interests created under the ~~Uniroyal~~ Security Agreement has been taken. (A) fully executed counterparts of Mortgages in form and substance reasonably satisfactory to the Agent, which Mortgages shall cover such of the real property owned by any Loan Party as are designated as such on Schedule 4.01(dd) (each a "Mortgaged Property" and, collectively, the "Mortgaged Properties"), together with evidence that counterparts of the Mortgages have been delivered to the title insurance company insuring the lien of such Mortgages for recording in all places to the extent necessary or, in the reasonable opinion of the Agent desirable, to effectively create a valid and enforceable first priority mortgage lien on each Mortgaged Property (subject to only Permitted Liens) in favor of the Agent for the benefit of the Secured Parties, and (B) mortgage policies on each Mortgaged Property issued by such title insurers reasonably satisfactory to the Agent and in amounts satisfactory to the Agent assuring the Agent that the Mortgages on the Mortgaged Properties are valid and enforceable first priority mortgage liens on the respective Mortgaged Properties, free and clear of all defects, interests and encumbrances except Permitted Liens, and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Agent (including all endorsements thereto), and shall include, as appropriate, an endorsement for future advances under this Agreement and the Notes and for any other matter that the Agent in its discretion may reasonably request, shall not include an exception for mechanics' liens or creditors' rights, and shall provide for affirmative insurance and such reinsurance as the Agent in its discretion may reasonably request. (ix) A guaranty in substantially the form of Exhibit ~~E-1~~ F-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by ~~Crompton Corp.~~Parent. (x) A guaranty in substantially the form of Exhibit ~~E-2~~ F-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty" and, together with the Parent Guaranty and with each other guaranty delivered pursuant to Section ~~5.01(k~~5.01(m), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Subsidiary Guaranty~~Guaranties"), duly executed by each Subsidiary Guarantor. (xi) 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. (xii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the ~~Lender Parties~~ Lenders 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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oobligations

Appears in 1 contract

Sources: Credit Agreement (Massic Tool Mold & Die Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ Lender Parties shall ~~have been consummated substantially in accordance~~ be reasonably satisfied (i) that the amount of committed equity and debt financing shall be sufficient to meet the financing requirements of the Refinancing and the other transactions contemplated thereby, (ii) with the terms and conditions of the ~~Merger Agreement, without any waiver or amendment not consented~~ Related Documents and (iii) that the assets and earnings of the Loan Parties are sufficient to by support the ~~Lender~~ Obligations of the Loan Parties under the Loan Documents and the timely amortization of ~~any material term, provision or condition set forth therein,~~ all Debt and ~~in material compliance with all applicable laws~~other Obligations of the Loan Parties. (b) The ~~Merger Agreement shall be in full force and effect. (c) The~~ Lender Parties shall be reasonably satisfied with the corporate and legal structure and capitalization of ~~each~~ the Loan ~~Party~~ Parties, both before and ~~each of its Subsidiaries~~after giving effect to the Refinancing, ~~including~~ including, without limitation, the terms and conditions of the charter, bylaws and each class of capital stock of each of the Loan ~~Party and each such Subsidiary~~ Parties and of each agreement or instrument relating to such structure or capitalization. (c) The Related Documents to be entered into in connection with the Refinancing shall have been executed and delivered and shall be in full force and effect, and before giving effect to the Refinancing and the other transactions contemplated thereby, there shall have occurred no Material Adverse Change since January 31, 1998. (d) The ~~Lender Parties~~ Borrower shall ~~be satisfied that all Existing Debt, other than~~ have received at least $100,000,000 in gross cash proceeds from the ~~Debt identified on Schedule 3.01(d) (~~sale of the ~~"Surviving Debt"), has been prepaid, redeemed or defeased~~ Senior Subordinated Notes and the Parent Guarantor shall have received at least $25,000,000 in ~~full or otherwise satisfied and extinguished~~gross cash proceeds from the sale of the Discount Notes. (e) ~~There shall have occurred no material adverse change~~ The Series A Preferred Stock has been redeemed for an aggregate redemption price not in ~~the business, condition (financial or otherwise), operations, performance, properties or prospects~~ excess of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995$17,800,000. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of ~~its~~ their Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of ~~the Merger, this Agreement,~~ any ~~Note, any other Loan Document, any Related~~ Transaction Document or the consummation of the Refinancing or the transactions contemplated ~~hereby, and there shall have been no material adverse change in the status,~~ hereby or ~~financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(f)~~thereby. (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any All material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with ~~Loan Documents~~ the Refinancing and the other transactions contemplated ~~thereby (including, without limitation,~~ by the ~~Merger)~~ Transaction Documents shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in ~~effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers~~effect, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods in connection with the Refinancing and the other transactions contemplated by the Transaction Documents shall have expired without any action ~~being~~ having been taken by any competent authority; , and no law or regulation shall be applicable in the reasonable judgment of the Lender ~~Parties~~ Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Loan~~ Refinancing and the other transactions contemplated by the Transaction Documents or the ~~transactions contemplated thereby~~ 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. (~~including~~h) [intentionally omitted] (i) Each of the senior secured credit facilities and the subordinated notes referred to in Schedule 4.01(ff) and the other Existing Debt, ~~without limitation~~other than the Debt identified on Schedule 3.01(i) (the "Surviving Debt"), has -------------- been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all such Surviving Debt shall be on terms and conditions satisfactory to the ~~Merger)~~Lender Parties. (j) ~~The Borrowers shall have paid all~~ All accrued fees and expenses of the Agent and the Lender Parties (~~including~~ including, without limitation, the accrued fees and expenses of counsel to the Agent and of local counsel to the Lender Parties)) shall have been paid. (k) The Agent shall have received on or before the ~~day~~ date of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Agent (unless otherwise specified) ~~and (~~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 required by Section 2.15. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower and each other Loan Party approving the ~~Merger~~Refinancing, this Agreement, the Notes, each other ~~Loan Document and each Related~~ 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 ~~Merger~~Refinancing, this Agreement, the Notes, each other ~~Loan Document and each Related~~ Transaction Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of ~~its incorporation~~incorporation of each Loan Party, dated reasonably near the date of the Initial Extension of Credit, in each case listing the charter of ~~each Borrower and each other Loan Party~~ such Person 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 ~~Borrower's or such other Loan Party's~~ charter on file in his office, (BC) ~~each Borrower and each other Loan Party have~~ such Person has paid all franchise taxes to the date of such certificate and (CD) ~~each Borrower and each other Loan Party are~~ such Person is duly incorporated and in good standing under the laws of the ~~State of the~~ jurisdiction of its incorporation. (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of the ~~State~~ States of ~~Delaware satisfactory~~ Maine, Pennsylvania and New York, as requested by the Agent, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower and each other Loan Party is duly qualified and in good standing as a foreign corporation in such States and has filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (v) A certificate of each ~~Borrower~~ of the Borrower, the Parent Guarantor and each other Loan Party, signed on behalf of such ~~Borrower or such other Loan Party, as the case may be,~~ Person by its President, any Executive Vice President or a any 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 ~~Borrower or such other Loan Party~~ Person since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such ~~Borrower or such other Loan Party~~ Person as in effect on the date on which the resolutions referred to in Section 3.01(k)(ii) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation and good standing or valid existence of such ~~Borrower or such other Loan Party~~ Person as a corporation organized under the laws of the ~~State~~ jurisdiction of its ~~incorporation,~~ incorporation and the absence of any proceeding for the dissolution or liquidation of such ~~Borrower or such other 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. (vi) A certificate of the Secretary ~~or an Assistant Secretary~~ of each ~~Borrower~~ of the Borrower, the Parent Guarantor and each other Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other Loan Party~~ Persons authorized to sign this Agreement, the Notes, each other ~~Loan Document and each Related~~ Transaction Document to which ~~they are~~ it is or ~~are~~ is to be ~~parties~~ a party and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit ~~D-1~~ D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(m), in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, and as permitted by this Agreement, the "~~Crompton~~ Security Agreement"), duly executed by each ~~Crompton Borrower and each Crompton Guarantor~~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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein~~ Indebtedness indorsed in blank, (B) ~~duly~~ executed copies of proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens and security interests~~ Liens created under the ~~Crompton Security Agreement~~Collateral Documents, covering the Collateral described in the ~~Crompton~~ Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the ~~Uniroyal~~ Security Agreement that the Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) ~~instruments evidencing~~ copies of the ~~Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ Assigned Agreements referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, ~~and~~ 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)evidence~~ F) 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 Agent may deem reasonably necessary or desirable in order to terminate or amend existing Liens on the Collateral described in the Security Agreement, and (G) evidence that all other action that the Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority ~~liens~~ Liens and security interests created under the ~~Uniroyal~~ Security Agreement ~~has~~ have been taken, including, without limitation, delivery of Blocked Account Letters in form and substance satisfactory to the Agent. (viii) Mortgages in substantially the form of Exhibit E hereto and covering the properties listed on Schedule 4.01(gg) (together with each other mortgage delivered pursuant to Section 5.01(m), in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with their terms, and as permitted by this Agreement, the "Mortgages"), duly executed by the appropriate Loan Party, together ---------- with such title insurance policies, surveys, insurance certificates and other documents as the Agent may reasonably request. (ix) A true and complete copy of the lease for the Lewiston, Maine facility ("Lewiston Lease") and such other leases as the Agent may -------------- reasonably request and any and all ancillary documents pertaining thereto (including, but not limited to, all amendments, consents for alterations and documents recording variations and evidence of commencement dates and expiration dates). (x) A true and complete list of any and all retail store leases ("Retail Leases") under which any Loan Party or any of its ------------- Subsidiaries is the lessee in substantially the same form as shown on Schedule 4.01(hh) hereto. (xi) The Subordinated Debt Documents relating to the Senior Subordinated Notes, including, without limitation, the Senior Subordinated Note Indenture and the Discount Note Documents relating to the Discount Notes, including, without limitation, the Discount Note Indenture. (xii) A guaranty in substantially the form of Exhibit ~~E-1~~ I hereto (together with each other guaranty delivered pursuant to Section 5.01(m), in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, ~~the "Parent Guaranty"), duly executed~~ and as permitted by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its termsthis Agreement, the "Subsidiary Guaranty"), duly executed by each ------------------- Subsidiary Guarantor. (xixiii) Certified copies of each of the Related Documents, duly executed by each 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~~therewith as the Agent shall request. (~~xii~~xiv) Such financial, business and other information regarding ~~each Loan Party~~ the Parent Guarantor 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 ~~of Crompton Corp.~~ dated January 29, 1996, January 28, 1997 and ~~its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30~~January 27, ~~1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995~~1998, interim financial statements dated March 7, 1998, the ~~end~~ Consolidated pro forma balance sheet of the ~~most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp.~~ Parent Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, in each case, taken as a whole, after giving effect to the ~~Merger~~ Refinancing and the other ~~transactions~~transactions contemplated hereby and by the other Related Documents, ~~on a Consolidated basis~~dated as of March 7, 1998 and forecasts prepared by management of the Parent Guarantor in form and substance reasonably satisfactory to the Lender Parties, of balance sheets, income statements and cash flow statements ~~for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties,~~ on a ~~Consolidated~~ monthly basis ~~and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements~~ for the first year following ~~January 1, 1996~~ the date of the Initial Extension of Credit and on an annual basis for each year thereafter until the scheduled Termination Date. (~~xiii~~xv) ~~Certificates~~Certificates and letters, in substantially the form of ~~Exhibit G~~Exhibits M-1, M-2 and N, respectively, attesting to the Solvency of the Parent Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, in each ~~Loan Party~~ case taken as a whole, after giving effect to the ~~Merger~~ Refinancing and the other transactions contemplated ~~hereby~~hereby and by the Related Documents, from ~~its~~ the chief financial ~~officer~~officer of the Parent Guarantor. (~~xiv~~xvi) [intentionally omitted] (xvii) A ~~supplement~~ letter, in form and substance satisfactory to the ~~Uniroyal Security Agreement~~ Agent, from the Parent Guarantor to Ernst & Young, LLP, its independent certified public accountants, advising such accountants that, upon notice to the Borrower from the Agent, the Agent and the Lender Parties have been authorized to exercise all rights of the Parent Guarantor to require such accountants to disclose to the Lenders any and all financial statements and any other information of any kind that such accountants may have with respect to the Parent Guarantor and its Subsidiaries and directing such accountants to comply with any reasonable request of the Agent or any Lender Party for such information. (xviii) Evidence of insurance naming the Agent as additional insured or loss payee, as the case may be, with such responsible and reputable insurance companies or associations, and in ~~respect of Collateral located in~~ such amounts and covering such risks, as is satisfactory to the ~~State of Louisiana~~ Lender Parties, including, without limitation, business interruption insurance and product liability insurance. (xix) An intellectual property security agreement in substantially the form of Exhibit ~~D-3~~ G hereto (together with each other intellectual property security agreement and security agreement supplement delivered pursuant to Section 5.01(m), in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, and as permitted by this Agreement, the "~~Louisiana Undertaking~~Intellectual Property Security Agreement"), duly executed by each Loan ---------------------------------------- Party, together with evidence that all action that the ~~Uniroyal Borrower~~ Agent may deem necessary or desirable in order to perfect and protect the ~~Uniroyal Guarantors~~first priority Liens and security interests created under the Intellectual Property Security Agreement have been taken. (xvxx) ~~An environmental assessment report~~A Canadian security agreement in substantially the form of Exhibit H hereto (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, and as permitted by this Agreement, the "Canadian Security Agreement"), duly --------------------------- executed by IA Canada, together with evidence that all action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Canadian Security Agreement has been taken. (xxi) Landlord consent for the Lewiston, Maine warehouse facilities in form and substance satisfactory to the ~~Lender Parties, from Environmental Safety~~ Agent. (xxii) The satisfaction and ~~Designs, Inc.,~~ termination of the Existing Credit Facilities. (xxiii) Blocked Account Letters (as defined in the Security Agreement) in form and substance satisfactory to ~~any hazards, costs or liabilities under Environmental Laws to which any~~ the Agent entered into by the Borrower and each other Loan Party ~~or any of its Subsidiaries may be subject, the amount and nature o~~covering all existing deposit accounts as

Appears in 1 contract

Sources: Credit Agreement (Iron Age Holdings Corp)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The final terms and conditions of the Merger, including, without limitation, all legal and tax aspects thereof, shall be (i) as described in the Commitment Letter dated November 26, 1996 from Fleet to ▇.▇. Childs and otherwise consistent in all material respects with the description thereof received in writing as part of the Pre-Commitment Information and (ii) otherwise reasonably satisfactory to the Lenders. (b) The Merger Agreement shall be in full force and effect. (c) The Additional Purchase shall have been consummated ~~substantially~~ in all material respects in accordance with ~~the terms of~~ the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (bd) The ~~Merger Agreement~~ Lender Parties shall be satisfied in ~~full force and effect~~their reasonable discretion that the restrictions in Section 2.03 of the Delaware General Corporation Law are not applicable to the Merger or that any conditions to avoiding the restrictions contained therein have been satisfied. (ce) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (df) The Lender Parties shall be satisfied with the terms and conditions of the equity (the "Equity") provided on or prior to the consummation of the Additional Purchase by the Equity Investors, consisting of not less than $65,000,000 of common and preferred equity (not less than $55,000,000 of which shall be common equity); and Holding shall have received at least $65,000,000 in gross cash proceeds from the Equity. (g) The terms of the Stock Purchase Facilities shall be consistent with the terms of the Acquisition Financing Commitment Letter dated November 26, 1996 among NationsBank, NationsBanc Capital Markets, Inc. and ▇.▇. Childs and shall otherwise be reasonably satisfactory to the Lender Parties; and the Purchaser shall have received sufficient gross cash proceeds from borrowings under the Stock Purchase Facilities to consummate the Additional Purchase. (h) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt ~~identified~~ of the Borrower set forth on Schedule ~~3.01(d)~~ XIV (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (~~e) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (~~i) ~~before and after~~ Before giving effect to the ~~Merger~~ Additional Purchase and the other transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole,~~ there shall have occurred no Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30October 28, 1995. (fj) 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) ~~would~~ could reasonably be ~~reasonably likely~~ expected to have a Material Adverse Effect other than the matters described on Schedule ~~3.01(f)~~ II (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of the Additional Purchase, the Merger, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, 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 ~~3.01(f)~~II. (gk) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 ~~Borrowers~~ Borrower and ~~their respective~~ its Subsidiaries as they shall have requested and shall have received such financial business and other information regarding each of the foregoing Persons as they shall have reasonably requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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. (il) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with ~~Loan Documents~~ the Transaction and the ~~transactions contemplated thereby (including, without limitation, the Merger)~~ Facilities shall have been obtained (without the imposition of any conditions that are not ~~reasonably~~ acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liabilityeffect; all applicable waiting periods shall have expired without any adverse action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Loan Documents~~ Transaction or the ~~transactions contemplated thereby (including, without limitation, the Merger)~~Facilities. (jm) All of the information provided by or on behalf of ▇.▇. Childs or by or on behalf of the Borrower to the Administrative Agent and the Lender Parties prior to their commitment in respect of the Facilities (the "Pre-Commitment Information") shall be true and correct in all material respects; and no additional information shall have come to the attention of the Administrative Agent or the Lender Parties that is inconsistent in any material respect with the Pre-Commitment Information or that could reasonably be expected to have a Material Adverse Effect. (n) The ~~Borrowers~~ Borrower shall have paid all accrued fees ~~and expenses~~ of the Administrative Agent and the Lender ~~Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender~~ Parties). (ko) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower and each other Loan Party approving the Stock Purchase, Merger, this Agreement, the Notes, each other Loan Document and each Related 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 Stock Purchase, the Merger, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) 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. (iv) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of ~~each~~ the Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to ~~such~~ the Borrower's or such other Loan Party's charter on file in his office, (B) ~~each~~ the Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) ~~each~~ the Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (ivv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of each of the State of ~~Delaware satisfactory~~ Ohio and the State of Iowa, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (vvi) A certificate of ~~each~~ the Borrower and each other Loan Party, signed on behalf of ~~such~~ the Borrower or and such other Loan ~~Party, as the case may be,~~ Party 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~~ the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(m)(iii), (B) a true and correct copy of the bylaws of ~~such~~ the Borrower or and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of ~~such~~ the Borrower or and such other Loan Party as a corporation organized under the laws of the State of ~~its incorporation~~Delaware, and the absence of any proceeding for the dissolution or liquidation of ~~such Borrower~~ the Borrower, the Company or such other 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. (vivii) A certificate of the Secretary or an Assistant Secretary of ~~each~~ the Borrower and each other Loan Party certifying the names and true signatures of the officers of ~~such~~ the Borrower or and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit ~~D-2~~ D (~~as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and,~~ together with ~~the Crompton Security Agreement and~~ each other security agreement delivered pursuant to Section ~~5.01(k~~5.01(p), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the ~~Uniroyal Borrower and each Uniroyal Guarantor~~Borrower, together with: (A) ~~duly~~ 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 or stamped receipt copies of proper financing statements, ~~to be~~ duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions 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 ~~Uniroyal~~ Security Agreement, covering the Collateral described in the ~~Uniroyal~~ Security Agreement, (BC) 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 (AB) above that name the ~~Uniroyal~~ Borrower ~~or any Uniroyal Guarantor~~ as debtor, together with copies of such other financing statements, (CD) evidence of the completion of all other recordings and filings of or with respect to the ~~Uniroyal~~ Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (DE) evidence of the insurance required by the terms of the Security Agreement, (EF) ~~instruments evidencing~~ copies of the ~~Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ Assigned Agreements referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, ~~and~~ 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 Borrower, and (~~F)evidence~~ G) evidence that all other 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 ~~Uniroyal~~ Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) Certified copies of each of the Related ~~Documents~~Documents in existence on such date, 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, in each case certified by a Responsible Officer. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiiix) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the ~~Merger~~ Additional Purchase and the other transactions contemplated hereby, from its chief financial officer. (xi) Evidence of insurance naming the Administrative Agent as 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) Certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries. (xiii) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries, in each case certified by a Responsible Officer. (xiv) A ~~supplement to~~ Borrowing Base Certificate. (xv) A favorable opinion of ▇▇▇▇▇▇▇▇ & Worcester, counsel for the ~~Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana~~ Purchaser and Holding, in substantially the form of Exhibit ~~D-3 (~~E hereto and as ~~amended, supplemented or otherwise modified from time~~ to ~~time in accordance with its terms,~~ such other matter as any Lender Party through the ~~"Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors~~Administrative Agent may reasonably request. (xvxvi) ~~An environmental assessment report~~A favorable opinion of Dickinson, Mackaman, Tyler & ▇▇▇▇▇, P.C., local counsel to the Loan Parties in the State of Iowa, in substantially the form of Exhibit F hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xvii) A favorable opinion of Shearman & Sterling, counsel for the Administrative Agent, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oAdministrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Central Tractor Farm & Country Inc)

Appears in 1 contract

Sources: Credit Agreement (Med E America Corp)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger Agreement shall be in full force and effect and the Recapitalization and the Merger shall have been consummated ~~substantially~~ strictly in accordance with all applicable law and with the terms and conditions of the Merger Agreement, the Rollover Agreement and the Stockholders Agreements, without any waiver or amendment not consented to by the Agents and the Lender Parties of any ~~material~~ term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws, and the Administrative Agent shall have received certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware of the consummation of the Merger. (b~~) The Merger Agreement shall be in full force and effect. (c~~) The Lender Parties shall be satisfied (i) with the corporate and legal structure and capitalization of ~~each~~ the Loan ~~Party~~ Parties, both before and ~~each of its Subsidiaries~~after giving effect to the Recapitalization, including the terms and conditions of the charter, bylaws and each class of capital stock of ~~each~~ the Loan ~~Party and each such Subsidiary~~ Parties and of each agreement or instrument relating to such structure or capitalization, (ii) that the amount of committed equity and debt financing shall be sufficient to meet the financing requirements of the Merger, the Recapitalization and the other transactions contemplated thereby, (iii) with the terms and conditions of the Loan Documents and the Related Documents and (iv) that the assets and earnings of the Borrower are sufficient to support the Obligations of the Borrower under this Agreement and the timely amortization of all Indebtedness and other Obligations of the Borrower. (dc) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (e) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before Before and after giving effect to the ~~Merger~~ Merger, the Recapitalization and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, there shall have occurred no Material Adverse Change since September 30, ~~1995~~1997. (d) (x) MEDIQ shall have received at least $109,500,000 in gross cash proceeds from the issuance of common and preferred stock to its equity investors, $1,763,000 in gross cash proceeds from the issuance of common and preferred stock to the equity holders of MEDIQ that are members of management and an additional $14,500,000 in Rolled Shares and (y) evidence that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall have entered into an unconditional undertaking, for the benefit of the Lender Parties, dated the date hereof, to purchase common and preferred shares of MEDIQ no later than June 8, 1998 in an amount equal to $2,437,000 minus any amounts contributed by members of management of MEDIQ (other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇ with respect to purchases made on the date hereof) to purchase common and preferred shares of MEDIQ prior to such date pursuant to the Investor Management Agreement to be entered into among certain members of management of MEDIQ. (e) MEDIQ shall have received at least $75,000,000 in gross cash proceeds from the sale of the Discount Debentures. (f) The Borrower shall have received at least $190,000,000 in gross cash proceeds from the sale of the Senior Subordinated Notes and the Borrower shall have advanced sufficient funds to MEDIQ to consummate the Merger. (g) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any Loan Party or any of ~~its~~ their Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could reasonably be ~~reasonably likely~~ expected to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the Merger, the Recapitalization, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (gh) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 ~~Borrowers~~ Company and ~~their respective~~ its Subsidiaries as they shall have requested. (hi) ~~All stock of the Borrowers (~~The Existing Debt, other than ~~Crompton Corp.~~the Debt identified on Schedule 3.01(i) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~the Borrowers' Subsidiaries, to the extent owned by the Borrowers~~ extinguished and ~~their Subsidiaries,~~ that all such Surviving Debt shall be ~~owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free~~ on terms and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions ~~that are not reasonably acceptable~~ satisfactory to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) ~~The Borrowers shall have paid all~~ All accrued fees and expenses of the Administrative Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Administrative Agent and of local counsel to the Lender Parties)) shall have been paid. (k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to 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~~Lenders to the extent requested by any Lender pursuant to Section 2.16. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Company and each ~~other~~ Loan Party approving the Merger, the Recapitalization, this Agreement, the Notes, each other Loan Document and each Related 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 Merger, the Recapitalization, this Agreement, ~~the~~ any Notes, each other Loan Document and each Related ~~Document~~Document and of the transactions contemplated hereby. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, in each case listing the charter of ~~each Borrower~~ the Company and each ~~other~~ Loan Party 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 ~~Borrower's or such other Loan Party's~~ charter on file in his office, (BC) ~~each Borrower and each other Loan Party have~~ such Person has paid all franchise taxes to the date of such certificate and (CD) ~~each Borrower and each other Loan Party are~~ such Person is duly incorporated and in good standing under the laws of the ~~State~~ state of the jurisdiction of its incorporation. (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of the ~~State~~ states listed on Schedule 3.01(k)(iv), dated reasonably near the date of ~~Delaware satisfactory~~ the Initial Extension of Credit, stating that the Company, the Borrower and each other Loan Party as requested by the Administrative Agent is duly qualified and in good standing as a foreign corporation in such states and has filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (v) A certificate of each ~~Borrower~~ of the Company and each ~~other~~ Loan Party, signed on behalf of such ~~Borrower or such other Loan Party, as the case may be,~~ Person by its President or a Senior 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 ~~Borrower or such other Loan Party~~ Person since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such ~~Borrower or such other Loan Party~~ Person as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such ~~Borrower or such other Loan Party~~ Person as a corporation organized under the laws of the ~~State~~ jurisdiction of its ~~incorporation,~~ incorporation and the absence of any proceeding for the dissolution or liquidation of such ~~Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each ~~Borrower~~ of the Company and each ~~other~~ Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other Loan Party~~ Persons authorized to sign this Agreement, ~~the~~ any Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit ~~D-1~~ D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(m), in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Crompton~~ Security Agreement"), duly executed by ~~each Crompton~~ the Borrower and each ~~Crompton~~ other Subsidiary Guarantor, together with: (A) certificates representing the Pledged Shares ~~referred to therein~~ accompanied by undated stock powers executed in ~~blank,~~ blank and instruments evidencing the Pledged Debt ~~(except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed~~ endorsed in blank, (B) ~~duly~~ executed copies of proper financing statements, to be duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of the states listed on Schedule 3.01(k)(vii)(B) and all other jurisdictions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the ~~first priority liens and security interests~~ Liens created under the ~~Crompton Security Agreement~~Collateral Documents, covering the Collateral described in the ~~Crompton~~ 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 the jurisdictions referred to in clause (B) above that name any ~~Crompton Borrower~~ Loan Party or ~~any Crompton Guarantor~~ the Company 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 ~~Crompton~~ Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (DE) evidence of the insurance required by the terms of the Security Agreement, (EF) ~~instruments evidencing~~ copies of the ~~Pledged Debt~~ Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements, (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 described in the Security Agreement, except as ~~otherwise provided~~ contemplated in ~~Sections 5.02(b)(i)(D~~the Security Agreement, (H) ~~and 5.02(b)(ii))~~ the Blocked Account Letters referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, duly executed by each Blocked Account Bank listed on Schedule 3.01(k)(vii)(H) in form and substance satisfactory to the Administrative Agent, (~~F)evidence~~ I) Landlord consents, duly executed by each of the Persons listed on Schedule 3.01(k)(vii)(I) in form and substance satisfactory to the Administrative Agent, and (J) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the ~~first priority liens~~ Liens and security interests created under the ~~Uniroyal~~ Security Agreement has been taken. (ixviii) A ~~guaranty~~ mortgage in substantially the form of Exhibit ~~E-1~~ E hereto and covering the property listed on Schedule 4.01(hh) (together with each other mortgage delivered pursuant to Section 5.01(m), in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with ~~its~~ their terms, the "~~Parent Guaranty~~Mortgage"), duly executed by ~~Crompton Corp.~~the Borrower, together with evidence that the Mortgage has been duly recorded in all filing or recording offices that the Administrative Agent may deem desirable and all other action that the Administrative Agent may deem necessary or desirable including a title search in order to create valid first and subsisting Liens on the property described in the Mortgage in favor of the Secured Parties and that all filing and recording expenses and fees have been paid. (xix) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "The Subsidiary ~~Guaranty"),~~ Guaranty duly executed by each Subsidiary ~~Guarantor~~Guarantor listed on Schedule 3.01(k)(ix). (xix) 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~~therewith as the Administrative Agent shall request. (~~xii~~xi) Such financial, business and other information regarding the Company and 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 Consolidated and unaudited consolidating annual financial statements (such unaudited consolidating financial statements prepared in accordance with Regulation S-X and certified by the chief financial officer of ~~Crompton Corp.~~ the Company) of the Company and its Subsidiaries ~~(other than Uniroyal Corp. and its Subsidiaries)~~ dated ~~December~~ September 30, 1995, ~~audited annual~~ September 30, 1996 and September 30, 1997, interim Consolidated and consolidating financial statements dated December 31, 1997 (such financial statements prepared in accordance with Regulation S-X and certified by the chief financial officer of ~~Uniroyal Corp.~~ the Company), of the Company and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by ~~management of the Borrowers~~management, in form and substance satisfactory to the Lender Parties, ~~on a~~ of Consolidated ~~basis and, to the extent otherwise available, on a Consolidating basis, of~~ balance sheets, income statements and cash flow statements of MEDIQ and its Subsidiaries on a monthly basis for the first ~~year~~ two years following ~~January 1, 1996~~ the day of the Initial Extension of Credit and on an annual basis for each year thereafter until the Termination Date. (xii) An opinion, in substantially the form of Exhibit I, attesting to the Solvency of the Borrower on a Consolidated basis and MEDIQ on a Consolidated basis, after giving effect to the Merger, the Recapitalization and the other transactions contemplated hereby, from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. (xiii) Certificates, in substantially the form of ~~Exhibit G~~Exhibits J-1 and J-2, attesting to the Solvency of ~~each Loan Party~~ the Borrower on a Consolidated basis and MEDIQ on a Consolidated basis both before and after giving effect to the ~~Merger~~ Refinancing and the other transactions contemplated hereby, ~~from its~~ signed on behalf of each of the Borrower and MEDIQ by their respective chief financial ~~officer~~officers, attesting to the solvency of the Borrower on a Consolidated basis and MEDIQ on a Consolidated basis, respectively. (xiv) A ~~supplement~~ certificate of the Borrower certifying that no event has occurred or condition exists related to the ~~Uniroyal Security Agreement~~ real estate located at One MEDIQ Plaza, Pennsauken, New Jersey that may result in ~~respect of Collateral located~~ material liability pursuant to any Environmental Law and that is not disclosed in the ~~State of Louisiana in substantially the form of Exhibit D-3 (as amended~~July 22, ~~supplemented or otherwise modified from time to time in accordance with its terms~~1996 Phase I Environmental Site Assessment Report prepared by ▇▇▇▇▇ Associates, ~~the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors.~~Inc. (xv) ~~An environmental assessment report~~A letter, in form and substance satisfactory to the Administrative Agent, from MEDIQ to Deloitte & Touche 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 MEDIQ and its Subsidiaries 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 MEDIQ and its Subsidiaries and directing such accountants to comply with any reasonable request of the Administrative Agent or any Lender Party through the Administrative Agent 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, ~~from Environmental Safety~~ including, without limitation, business interruption insurance, product liability insurance, and ~~Designs~~directors and officers insurance. (xvii) A Borrowing Base Certificate dated as of the most recent month end prior to the date of the Initial Extension of Credit; provided, ~~Inc.~~however that if such month end is less than 20 days prior to the date of the Initial Extension of Credit, ~~as to any hazards, costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries~~ such Borrowing Base Certificate may be ~~subject~~dated as of the end of the next preceding month. (xviii) Favorable opinions of Dechert, Price & ▇▇▇▇▇▇▇, special counsel for the ~~amount and nature o~~Loan Parties, in substantiall

Appears in 1 contract

Sources: Credit Agreement (Mediq Inc)

Conditions Precedent to Initial Extension of Credit. ~~The~~ In addition to satisfying each of the conditions precedent set forth in Section 3.3, the obligation of ~~each~~ the Lender Group (or any member thereof) to make an the initial Advance (or of otherwise extend any ~~Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder~~ credit hereunder) is subject to the prior fulfillment, to the satisfaction of Lender Group, of each of the ~~following~~ conditions ~~precedent before or concurrently with the Initial Extension of Credit~~set forth below: (a) ~~The Merger~~ the Closing Date shall ~~have been consummated substantially in accordance with the terms of the Merger Agreement~~occur on or before October 29, ~~without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws.~~2009; (b) ~~The Merger Agreement~~ Agent shall have received all financing statements required by Agent, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect.: (ci) ~~The Lender Parties shall be satisfied~~ the Control Agreements (to the extent not previously delivered to Agent and in full force and effect), (ii) the Disbursement Letter, (iii) the Fee Letter, (iv) the Guaranty executed by OED Capital Corp. and the Guarantor Security Agreement (or ratifications thereof to the extent previously delivered to Agent and in full force and effect), (v) the S▇▇▇▇▇▇ Guaranty, (vi) the Intercompany Subordination Agreement, LAW_US_W # 62188650.14 (vii) an acknowledgement to the Intercreditor Agreement by U.S. Bank National Association, in its cpacity as Secured Notes Trustee, in form and substance acceptable to Agent, (viii) the Management Fees Subordination Agreement, (ix) the Mortgages (to the extent not previously delivered to Agent and in full force and effect), together with any consents or amendments required for such Mortgages, (x) the ~~corporate~~ Ship Mortgage, (xi) the Officers’ Certificate, (xii) a solvency certificate with respect to Borrowers and ~~legal structure~~ Guarantors, (xiii) the PGP Pledge Agreement (or ratifications thereof to the extent previously delivered to Agent and ~~capitalization~~ in full force and effect), together with all certificates representing the shares of ~~each Loan Party~~ Capital Stock of Parent pledged thereunder, as well as Capital Stock powers with respect thereto endorsed in blank (xiv) the Pledge Agreement (or ratifications thereof to the extent previously delivered to Agent and ~~each~~ in full force and effect), together with all certificates representing the shares of ~~its Subsidiaries~~Capital Stock pledged thereunder, ~~including~~ as well as Capital Stock powers with respect thereto endorsed in blank, and (xv) the ~~terms~~ Trademark Security Agreement (or ratifications thereof to the extent previously delivered to Agent and ~~conditions of the charter, bylaws~~ in full force and ~~each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.~~effect); (d) ~~The Lender Parties~~ Agent shall ~~be satisfied that all Existing Debt~~have received a certificate from the Secretary of each Borrower and Guarantor attesting to the resolutions of such Person’s board of directors (or comparable manager) authorizing its execution, delivery, and performance of this Agreement and the other ~~than~~ Loan Documents to which such Person is a party and authorizing specific officers of such Person to execute the ~~Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.~~same; (e) ~~There~~ Agent shall have ~~occurred no material adverse change in the business~~received copies of each Borrower’s and Guarantor’s Governing Documents, ~~condition (financial~~ as amended, modified, or ~~otherwise), operations, performance, properties or prospects of (i) before and after giving effect~~ supplemented to the ~~Merger and~~ Closing Date, certified by the ~~other transactions contemplated by this Agreement~~Secretary of such Borrower or Guarantor, ~~Crompton Corp. and~~ as applicable, or certifications from the Secretary of such Borrower or Guarantor that (1) none of its ~~Subsidiaries~~Governing Documents have been amended, ~~taken as a whole,~~ modified or supplemented since ~~December 31, 1995, (ii) after giving effect~~ the delivery thereof to Agent on the ~~Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995~~ Note Issuance Date or (~~iii~~2) ~~before~~ attached thereto is a true, correct and ~~after giving effect to the Merger and the other transactions contemplated by this Agreement~~complete copy of any such amendment, ~~Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995.~~modification or supplement thereto (f) ~~There~~ Agent shall ~~exist no action~~have received a certificate of status with respect to each Borrower and Guarantor, ~~suit~~dated within 10 days of the Closing Date, ~~investigation~~such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower or LAW_US_W # 62188650.14 Guarantor, ~~litigation~~ as applicable, which certificate shall indicate that such Borrower or ~~proceeding affecting any Loan Party~~ Guarantor, as applicable, is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to each Borrower and Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower or ~~any~~ Guarantor, as applicable) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower or Guarantor, as applicable, is in good standing in such jurisdictions; (h) Agent shall have received a certificate of ~~its Subsidiaries pending or threatened before any court~~insurance, ~~governmental agency or arbitrator that~~ together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent; (i) ~~would~~ Agent shall have received Collateral Access Agreements with respect to any leased property of Parent or any Restricted Subsidiary for which a Collateral Access Agreement was not delivered to Agent in connection with the Existing Loan Agreement; (j) Agent shall have received opinions of Borrowers’ and Guarantors’ counsel (including, without limitation, maritime, real estate counsel and regulatory counsel) in form and substance satisfactory to Agent; (k) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be ~~reasonably likely~~ filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of Permitted Protests; (l) Agent shall have completed its business, legal, and collateral due diligence to the extent necessary to determine to Agent’s satisfaction the verification of Borrowers’ representations and warranties to the Lender Group; (m) Agent shall have received and reviewed the Closing Date Business Plan and its detailed budget on remaining construction costs at the Racino Project in form and substance satisfactory to Agent; (n) Borrowers shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (o) Agent shall have received mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a ~~Material Adverse Effect other than~~ title insurance company satisfactory to Agent (each a “Mortgage Policy” and, collectively, the ~~matters described~~ “Mortgage Policies”) in amounts satisfactory to Agent (or such bring down endorsements as Agent may request to any such Mortgage Policies previously delivered to Agent and in full force and effect) assuring Agent that the Mortgages on ~~Schedule 3.01(f~~such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; LAW_US_W # 62188650.14 (p) Agent shall have received (i) copies of each of the ~~"Disclosed Litigation"~~following documents, together with a certificate of the Secretary of Parent certifying each document as being true, correct, and complete: (A) the Management Agreements, (B) the Secured Notes Documents and the Unsecured Notes Documents, (C) evidence, including, corporate merger documents, that AB Casino Acquisition, LLC, a Delaware limited liability company, has merged with Parent and (D) the documents relating to the Gaming Acquisition or, in each case, to the extent previously delivered to Agent on the Note Issuance Date a certification from the Secretary of Parent that (1) no such agreement, instrument or document has been amended, restated, supplemented or otherwise modified since such date or (ii2) ~~purports to affect~~ attached thereto is a true, correct and complete copy of any such amendment, restatement, supplement or other modification; (q) Borrowers shall have received all licenses (including the ~~legality~~Gaming Licenses), ~~validity~~ approvals or ~~enforceability~~ evidence of other actions required by any Governmental Authority, including the ~~Merger~~Louisiana Regulatory Authorities and the Iowa Gaming Authorities, in connection with the execution and delivery by Borrowers of this ~~Agreement, any Note,~~ Agreement or any other Loan ~~Document, any Related~~ Document or with the consummation of the transactions contemplated ~~hereby,~~ hereby and ~~there shall have been no material 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 3.01(f).~~thereby; (gr) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have ~~a valid~~ received an acknowledgement from each Borrower and ~~perfected first priority lien on~~ Guarantor that, upon making of the initial Advance hereunder, the outstanding “Obligations” under and ~~security interest~~ as defined in the ~~Collateral~~ Existing Loan Agreement and the other “Loan Documents” (as defined therein) constitute Obligations hereunder and under the other ~~than as to matters of perfection and priority of~~ Loan Documents; (s) Agent shall have received the ~~security interest in the Pledged Accounts~~ “Consent Fee” (as defined in the ~~Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)~~Consent Fee Letter) for the ~~benefit~~ account of CIT Lending Services Corporation and American Trust and Savings Bank, as described in the ~~Secured Parties~~Consent Fee Letter; and (t) all ~~filings, recordations~~ other documents and ~~searches necessary or desirable~~ legal matters in connection with ~~such liens and security interests~~ the transactions contemplated by this Agreement shall have been ~~duly made; and all filing and recording fees and taxes shall have been duly paid. (i) All governmental and third party consents and approvals (including~~delivered, ~~without limitation~~executed, ~~any consents~~ or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) recorded and shall ~~remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x)~~ be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender Parties). (k) The Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to Agent. Notwithstanding the ~~Agent~~ foregoing, the Lenders are under no obligation to make the initial Advance (or otherwise to extend any credit provided for hereunder) unless ~~otherwise specified)~~ and ~~(except for~~ until all of the ~~Notes)~~ conditions set forth in ~~sufficient copies for each Lender Party: (i) The Notes payable~~ Section 3.3 below are satisfied to the ~~order~~ satisfaction of ~~the Lenders~~Agent. (ii) Certified copies of the resolutions of the Board of Directors of each Borrower, and each other Loan Party approving the Merger, this Agreement, the Notes, each other Loan Document and each Related 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 Merger, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower or such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Loan and Security Agreement (Peninsula Gaming, LLC)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (d) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (e) There shall have occurred no ~~material adverse change in the business~~Material Adverse Change since February 3, ~~condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect~~ 2001. Nothing shall have come to the ~~Merger and~~ attention of the ~~other transactions contemplated by this Agreement~~Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, ~~Crompton Corp. and its Subsidiaries~~incorrect or incomplete in any material respect. Without limiting the generality of the foregoing, ~~taken as a whole, since December 31, 1995, (ii) after giving effect~~ the Lenders shall have been given such access to the ~~Merger~~ management, records, books of account, contracts and properties of the ~~other transactions contemplated by this Agreement, Crompton Corp.~~ Borrower and its Subsidiaries ~~(other than Uniroyal Corp. and its Subsidiaries), taken~~ as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995they shall have reasonably requested. (fb) 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) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this ~~Agreement,~~ Agreement or any ~~Note, any other Loan Document, any Related Document~~ Note or the consummation of the transactions contemplated hereby~~, and there~~ . (c) All amounts owing under the Existing Credit Agreements shall have been ~~no material adverse change~~ (or shall be concurrently with the Initial Extension of Credit) paid in full in cash (or otherwise satisfied with respect to Existing Letters of Credit and the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(f). (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.Existing Competitive Bid Advances) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts all Commitments (as defined in the ~~Uniroyal Security Agreement~~Existing Credit Agreements) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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~~terminated. (id) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with ~~Loan Documents and~~ the transactions contemplated ~~thereby (including, without limitation, the Merger)~~ hereby shall have been obtained (without the imposition of any conditions that are not ~~reasonably~~ acceptable to the Lender Parties) and shall remain in ~~effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers~~effect, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Loan Documents or the~~ transactions contemplated ~~thereby (including, without limitation, the Merger)~~hereby. (je) The ~~Borrowers~~ Borrower shall have paid all accrued fees and expenses of the ~~Agent and the Lender Parties~~ Agents (including the reasonable accrued fees and expenses of counsel to the ~~Agent~~ Agents) and ~~local counsel to~~ all accrued fees of the Lender Parties). (kf) On the Effective Date, the following statements shall be true and the Paying Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and (ii) No event has occurred and is continuing or would result from the Initial Extension of Credit that constitutes a Default. (g) The Paying Agent shall have received on or before the ~~day of the Initial Extension of Credit~~ Effective Date the following, each dated such ~~day (unless otherwise specified)~~day, in form and substance satisfactory to the Paying Agent ~~(unless otherwise specified)~~ and (except for the Revolving Credit Notes) in sufficient copies for each Lender Party: (i) The Revolving Credit Notes ~~payable~~ to the order of each of the ~~Lenders~~Lenders that have requested Revolving Credit Notes prior to the Effective Date. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower approving this Agreement and ~~each other Loan Party approving the Merger, this Agreement,~~ the Notes~~, each other Loan Document and each Related Document to which it is or is to be a party~~, and of all documents (including, without limitation, charters and bylaws) evidencing other necessary corporate action and governmental ~~and other third party approvals and consents~~approvals, if any, with respect to ~~the Merger,~~ this ~~Agreement,~~ Agreement and the Notes~~, each other Loan Document and each Related Document~~. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of ~~each~~ the Borrower ~~and each other Loan Party~~ certifying the names and true signatures of the officers of ~~such~~ the Borrower ~~or such other Loan Party~~ authorized to sign this ~~Agreement,~~ Agreement and the ~~Notes, each other Loan Document and each Related Document to which they are or are to be parties~~ Notes and the other documents to be delivered ~~hereunder and thereunder~~hereunder. (~~vii~~iv) A ~~security agreement~~ favorable opinion of Jones, Day, Reavis & Pogue, counsel for ▇▇▇ ▇orrower, ▇▇▇▇tantially in ~~substantially the~~ ▇▇▇ form of Exhibit ~~D-1 (~~E hereto and as ~~amended, supplemented or otherwise modified from time~~ to ~~time in accordance with its terms,~~ such other matters as any Lender Party through the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Paying Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been takenreasonably request. (~~viii~~v) A ~~security agreement in substantially the form~~ favorable opinion of ~~Exhibit D-2 (as amended~~Dennis J. Broderick, ~~supplemented or otherwise modified from time to time in accordance with its terms~~General Counsel for t▇▇ ▇▇▇▇▇▇▇▇, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form ▇▇ ▇▇▇m and substance satisfactory to the ~~Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith~~Paying Agent. (~~xii~~vi) ~~Such financial~~A favorable opinion of Shearman & Sterling, 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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements counsel for the ~~one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers~~Agents, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination DateAgents. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (Federated Department Stores Inc /De/)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ elements of the Transaction to be effected on or before the Closing Date as set forth on Schedule 3.01(a) hereto shall have been consummated ~~substantially~~ on terms and conditions consistent with those described in ~~accordance~~ the Information Memorandum and otherwise reasonably satisfactory to the Lenders and in compliance with applicable law and regulatory approvals, and each of the Lenders shall be satisfied in all reasonable respects with the terms and conditions of all material agreements and instruments relating to the Transaction and there shall not have been any material modification, amendment, supplement or waiver to any material agreement or instrument relating to the Transaction that could adversely affect the Lenders in any material respect including, without limitation, any modification, amendment, supplement or waiver relating to (A) the amount or type of consideration to be paid in connection with the Transaction and all related tax, legal and accounting matters and (B) the capitalization, structure and equity ownership of the ~~Merger Agreement, without any waiver or amendment not consented~~ Borrower and its Subsidiaries after giving effect to by the ~~Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws~~Transaction. (b~~) The Merger Agreement shall be in full force and effect. (c~~) The Lender Parties shall be satisfied with the corporate or partnership (as applicable) and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the ~~charter~~charter (including, without limitation, the provisions in the charter of the Borrower providing for the unanimous vote of its shareholders to effect a voluntary bankruptcy of the Borrower), bylaws and each class of ~~capital stock~~ Equity Interests of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or ~~capitalization~~capitalization (including, without limitation, the Voting Trust Agreement and all shareholders' arrangements with respect to the Borrower or its Subsidiaries). (dc) The Lender Parties shall (i) be satisfied that all Existing Debt, other than the ~~Debt identified on Schedule 3.01(d) (the "~~Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties, (ii) have received duly executed and, if applicable, acknowledged, satisfactions, releases and terminations in form sufficient under applicable law to release, terminate and discharge all Liens securing Existing Debt other than Surviving Debt and (iii) be satisfied that Shoney's has accepted a tender offer for the Debentures and the ▇▇▇▇▇ on terms and conditions satisfactory to the Lender Parties. (ed) ~~There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after~~ Before giving effect to the ~~Merger and the other~~ transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole,~~ there shall have occurred no Material Adverse Change since ~~December~~ October 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 19951999. (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) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule ~~3.01(f~~3.01(e) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement, any ~~Note,~~ Note or any other ~~Loan~~ Transaction Document, ~~any Related Document~~ or the consummation of the Transaction or the transactions contemplated ~~hereby~~hereby or 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 Litigation from that described on Schedule ~~3.01(f~~3.01(e). (gf) The Lender Parties shall have completed a due diligence investigation of the ~~Borrowers~~ Borrower and ~~their respective~~ 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 (i) ~~that~~ the Information Memorandum was or has become misleading, incorrect or incomplete in any material ~~respect,~~ respect or (ii) ~~that~~any changes or developments have occurred, ~~following the consummation~~ or any new or additional information has come to their attention regarding Shoney's or any of its Subsidiaries or any aspect of the ~~Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected~~ Transaction that either individually or in the ~~Information Memorandum and (iii) that the Merger will~~ aggregate could reasonably be expected to have a Material Adverse ~~Effect~~Effect or adversely affect the Lender Parties or the Transaction; 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 ~~Borrowers~~ Borrower and ~~their respective~~ its Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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. (ig) All governmental and third party consents and approvals ~~(including~~and authorizations of, ~~without limitation~~notices and filings to or with, and other actions by any ~~consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ other Person necessary in connection with ~~Loan~~ any aspect of the Transaction, any of the Transaction Documents ~~and~~ or any of the other transactions contemplated ~~thereby (including~~thereby, ~~without limitation~~other than third party consents and approvals described on Schedule 3.01(g) hereto that have not been obtained that relate to the Restructuring, ~~the Merger)~~ shall have been obtained (without the imposition of any conditions that are not ~~reasonably~~ acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liabilityeffect; 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~~ Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the ~~Loan Documents~~ Transaction or the ~~transactions contemplated thereby~~ 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. (~~including~~h) The Lender Parties shall be satisfied that there are no existing or potential material tax, ~~without limitation~~ERISA or environmental liabilities, or other existing or potential material direct or contingent liabilities, other than such liabilities disclosed in the ~~Merger)~~audited financial statements for the fiscal year ended October 31, 1999 of Shoney's and its Subsidiaries or described on Schedule 3.01(h) hereto. (i) The Administrative Agent shall be satisfied with (i) all arrangements between the Borrower and its Subsidiaries, on the one hand, and Shoney's and its other Subsidiaries, on the other hand, and (ii) all tax sharing arrangements and administrative service agreements among Shoney's and its Subsidiaries, including the Borrower. (j) The ~~Borrowers~~ Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all accrued and invoiced expenses of the Administrative Agent and the Lender Parties (including the accrued and invoiced fees and expenses of counsel to the Administrative Agent, special intellectual property counsel to the Administrative Agent and local counsel to the ~~Lender Parties~~Administrative Agent). (k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to 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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower and each other Loan Party approving the ~~Merger~~Transaction, this Agreement, the ~~Notes,~~ Notes and each other ~~Loan Document and each Related~~ 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 ~~Merger~~Transaction, this Agreement, the ~~Notes,~~ Notes and each other ~~Loan Document and each Related~~ Transaction Document. (iii) A copy of the charter or certificate of formation, as applicable, 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 (or other appropriate officer) of the jurisdiction of its incorporation or formation as being a true and correct copy thereof. (iv) A copy of a certificate of the Secretary of State (or other appropriate officer) of the jurisdiction of its ~~incorporation~~incorporation or formation, dated reasonably near the date of the Initial Extension of Credit, ~~listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and~~ certifying that (A) ~~such amendments are~~ the ~~only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each~~ Borrower and each other Loan Party have paid all franchise taxes due prior to the date of such certificate and (CB) ~~each~~ the Borrower and each other Loan Party are duly incorporated or formed and in good standing under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation. (iv) Certified copies of a certificate of merger~~ incorporation or ~~other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger~~formation. (v) A copy of a certificate of the Secretary of State (or other appropriate officer) of each jurisdiction in which the Borrower and each other Loan Party transacts business, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower and each other Loan Party are duly qualified and in good standing as foreign corporations or limited liability companies, as applicable, in such State and have filed all annual reports required to be filed to the date of such certificate. (vi) A certificate of the Borrower and each other Loan Party, signed on behalf of ~~such~~ the Borrower or and such other Loan ~~Party, as the case may be,~~ Party 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 or certificate of ~~such~~ formation, as applicable, of the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws or operating agreement, as applicable, of ~~such~~ the Borrower or and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation or formation and good standing of ~~such~~ the Borrower or and such other Loan Party as a corporation or limited liability company, as applicable, organized under the laws of the ~~State~~ jurisdiction of its ~~incorporation~~incorporation or formation, and the absence of any proceeding for the dissolution or liquidation of ~~such~~ the Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower or such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (Shoneys Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ Acquisition shall have been consummated ~~substantially~~ in accordance with the terms of the ~~Merger~~ Purchase Agreement, without any waiver or amendment not consented to by the ~~Lender Parties~~ Agents of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (b) The ~~Merger~~ Purchase Agreement shall be in full force and effect. (c) Parent shall have received at least $375,000,000 in Net Cash Proceeds of the sale of equity to the Equity Investors, and such Net Cash Proceeds shall have been contributed, directly or indirectly, to the Borrower as a capital contribution and the Borrower shall have received $500,000,000 (less an underwriting spread of 3.5% on the first $350,000,000 and 4.5% on the remaining $150,000,000) in gross cash proceeds of the issuance of the Subordinated Notes. (d) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (de) The ~~Lender Parties~~ Agents shall be satisfied that all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~3.01(e) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties. (ef) ~~There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after~~ Before giving effect to the ~~Merger~~ Acquisition and the other transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole,~~ there shall have occurred no Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995. (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 agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger~~Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (gh) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ Nothing shall have come to the attention of the Lender Parties during the course of ~~such~~ their 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 ~~Merger~~Acquisition, ~~Crompton Corp.~~ the Borrower and its Subsidiaries would not have good and marketable title to all material assets of ~~Uniroyal Corp.~~ the Company and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender Parties). (k) The Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the 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. (ii) Certified copies of the resolutions of the Board of Directors of each Borrower, and each other Loan Party approving the Merger, this Agreement, the Notes, each other Loan Document and each Related 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 Merger, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower or such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oMemorandum

Appears in 1 contract

Sources: Credit Agreement (Amf Group Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Transaction, including all of the terms and conditions thereof, shall have been duly approved by the board of directors and (if required by applicable law) the shareholders of the parties thereto, and all Related Documents shall have been duly executed and delivered by the parties thereto and shall be in full force and effect. The representations and warranties set forth in the Related Documents shall be true and correct in all material respects as if made on and as of the date of the Initial Extension of Credit, except to the extent that such representations and warranties are stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date. (b) The Merger shall have been consummated ~~substantially~~ strictly in accordance with the terms of the Merger Agreement, and the Share Exchange shall have been consummated strictly in accordance with the terms of the Share Exchange and Termination Agreement, in each case without any waiver or amendment not consented to by the Agents and the Lender Parties of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (~~b) The Merger Agreement shall be in full force and effect. (~~c) The Agents and the Lender Parties shall be satisfied with the corporate and legal ~~structure~~ structure, ownership and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such ~~structure~~ structure, ownership or capitalization. (d) The Parent Borrower shall have received at least $149,935,000 (exclusive of any over funding amount) in Net Cash Proceeds from the issuance of the Senior Notes. (e) The Parent Borrower shall have received Net Cash Proceeds from the issuance of common stock to the Equity Investors in an amount at least equal to the product of $80,000,000 and the percentage of common stock of the Parent Borrower to be owned, directly or indirectly, by the Equity Investors after giving effect to the Transaction, all on terms and conditions satisfactory to the Agents and the Lender Parties. (f) No Borrowings shall be required or made on the Effective Date in connection with the consummation of the Transaction. (g) The Agents and the Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~4.01(gg) hereto (the "~~Surviving Debt~~SURVIVING DEBT"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Agents and the Lender Parties. (eh) ~~There~~ Before giving effect to the Transaction, there shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, Material Adverse Change since September 30, ~~1995~~1997. (fi) 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 of either Borrower's knowledge, threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger, this Agreement~~Transaction, any ~~Note, any other~~ Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f)Transaction. (gj) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ Nothing shall have come to the attention of the Lender Parties during the course of ~~such~~ their due diligence investigation to lead them to believe (i) that the ~~Information Memorandum~~ information relating to the Loan Parties furnished to the Lender Parties prior to the Effective Date was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the ~~Merger~~Transaction, ~~Crompton Corp.~~ the Parent Borrower and its Subsidiaries would not have good and marketable title to all material assets of ~~Uniroyal Corp.~~ the Parent Borrower and its Subsidiaries reflected in the ~~Information Memorandum~~ information relating to the Loan Parties furnished to the Lender Parties prior to the Effective Date and (iii) that the ~~Merger~~ 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 ~~Borrowers~~ Parent Borrower and ~~their respective~~ its Subsidiaries as they shall have requested. (hk) All ~~stock~~ accrued costs, fees and expenses of the ~~Borrowers (other than Crompton Corp.)~~ Agents and the ~~Borrowers' Subsidiaries,~~ Lender Parties to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; all filings, recordations and searches necessary or desirable in connection with such liens and security interests due shall have been ~~duly made; and all filing and recording~~ paid (including the accrued costs, fees and ~~taxes shall have been duly paid~~expenses of counsel to the Agents and local counsel to the Lender Parties). (l) The Agents and the Lender Parties shall be satisfied that (i) ~~All~~ all requisite governmental and other third party licenses, permits, approvals and consents ~~and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with ~~Loan Documents~~ the Initial Extension of Credit and for the ~~transactions contemplated thereby (including, without limitation,~~ consummation of the ~~Merger)~~ Transaction shall have been obtained (without the imposition of any conditions that are not ~~reasonably~~ acceptable to the Agents and the Lender Parties) and ~~shall~~ remain in ~~effect other than such governmental or third party consents~~ effect, and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed all applicable appeal periods and ~~delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability;~~ all applicable waiting periods (including, without limitation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as am▇▇▇▇▇) ▇▇ ▇▇▇▇▇▇▇ion 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~~ Parties, in each case, that restrains, prevents or imposes ~~materially~~ adverse conditions upon the ~~Loan Documents~~ consummation of the Transaction or the ~~transactions contemplated thereby~~ rights of the Loan Parties or their Subsidiaries freely to the transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them and (ii) the Initial Extension of Credit, and all other financing for the Transaction (including, without limitation, the ~~Merger)~~issuance of common stock of the Parent Borrower to AAC and the issuance of the Senior Notes) shall be in full compliance with all legal and regulatory requirements, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System. (jm) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender Parties). (k) The Administrative Agent shall have received on or before the ~~day~~ date of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Agent~~ Agents and the 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. (ii) Certified copies of (A) the resolutions of the Board of Directors (or persons performing similar functions) of each ~~Borrower, and each other~~ Loan Party approving the ~~Merger, this Agreement, the Notes~~Transaction, each ~~other~~ Loan Document and each Related Document to which it is or is to be a party, and of (B) all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the ~~Merger, this Agreement, the Notes~~Transaction, each ~~other~~ Loan Document and each Related ~~Document~~Document to which it is or is to be a party. (iii) A copy of a certificate of the Secretary of State or other appropriate governmental official of the jurisdiction of ~~its incorporation~~incorporation of each Loan Party other than IPC Hong Kong, dated reasonably near the date of the Initial Extension of Credit, ~~listing~~ certifying, where applicable, (A) as to a true and correct copy of the charter or other constitutive document of ~~each Borrower and each other~~ such Loan Party and each amendment thereto on file in ~~his~~ that office and ~~certifying~~ (B) that (A1) such amendments are the only amendments to such ~~Borrower's or such other~~ Loan Party's charter or other constitutive document on file in ~~his~~ that office, (B2) ~~each Borrower and each other~~ such Loan Party ~~have~~ has paid all franchise taxes to the date of such certificate and (C3) ~~each Borrower and each other~~ such Loan Party ~~are~~ is duly incorporated and in good standing or presently subsisting under the laws of the ~~State of the~~ jurisdiction of its ~~incorporation~~incorporation and a copy of a certificate of the Hong Kong Registrar of Companies dated reasonably near the date of the Initial Extension of Credit, certifying that IPC Hong Kong is presently on the Register. (iv) A copy of a certificate of the Secretary of State of the States of Connecticut and New York and, where applicable, a certificate of such other appropriate governmental official in all other appropriate jurisdictions, in each case, dated reasonably near the date of the Initial Extension of Credit, stating that each Loan Party other than IPC Hong Kong is duly qualified and in good standing as a foreign corporation in such State or other jurisdiction and has filed all annual reports required to be filed to the date of such certificate. (v) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Agents and the Lender Parties of the consummation of the Merger. (vvi) A certificate of each ~~Borrower and each other~~ Loan Party, signed on behalf of such ~~Borrower~~ Loan Party by its Chief Financial Officer or ~~such other Loan Party~~any Vice President or, as in the case ~~may be~~of any Foreign Subsidiary, ~~by its President or~~ a ~~Vice President~~ Director 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 ~~Borrower or such other~~ Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(m)(iii), (B) a true and correct copy of the bylaws of such ~~Borrower or such other~~ Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(m)(ii) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation and good standing or valid existence of such ~~Borrower or such other~~ Loan Party as a corporation organized under the laws of the ~~State~~ jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such ~~Borrower or such other~~ Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents and the Related 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. (vivii) A certificate of the Secretary or an Assistant Secretary of each ~~Borrower and each other~~ Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other~~ Loan Party authorized to sign ~~this Agreement, the Notes,~~ each ~~other~~ Loan Document and each Related Document to which ~~they are~~ it is or ~~are~~ is to be ~~parties~~ a party and the other documents to be delivered hereunder and thereunder. (~~vii~~viii) A security agreement in substantially the form of Exhibit ~~D-1~~ D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Crompton Security Agreement~~SECURITY AGREEMENT"), duly executed by each ~~Crompton Borrower~~ Borrower, each Domestic Guarantor and ~~each Crompton Guarantor~~IPC Canada, together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in ~~blank~~blank and instruments, ~~and instruments~~ including, without limitation, the Intercompany Notes, evidencing the Pledged Debt ~~(except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ referred to therein indorsed in blank, (B) ~~duly~~ executed ~~proper~~ copies of Uniform Commercial Code financing statements, to be filed under the Uniform Commercial Code of all jurisdictions 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 ~~Crompton~~ Security Agreement, covering the Collateral described in the ~~Crompton~~ Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any ~~Crompton Borrower or any Crompton Guarantor~~ Loan Party as debtor, together with copies of such other financing statements, (D) duly executed copies of the Collateral Assignments referred to in the Security Agreement and evidence of the completion of all recordings and filings of or with respect to the Intellectual Property Collateral referred to in the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereunder, except to the extent that such recordings and filings are to be made, and such evidence is to be delivered, pursuant to Section 5.01(q) as notified to the Administrative Agent by the Parent Borrower on or prior to the Effective Date, (E) evidence of the completion of all other recordings and filings of or with respect to the ~~Crompton~~ Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, except to the extent that such recordings and filings are to be made, and such evidence is to be delivered, pursuant to Section 5.01(q) as notified to the Administrative Agent by the Parent Borrower on or prior to the Effective Date. (F) evidence of the insurance required by the terms of the Security Agreement, (G) copies of the Assigned Agreements referred to in, and set forth on Schedule II to, the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, and (EH) evidence that all other 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 ~~Crompton~~ Security Agreement has been taken (including, without limitation, delivering the duly executed Deed of Charge over Shares and the other Local Pledges to the Administrative Agent), except to the extent that such actions are to be taken, and such evidence is to be delivered, pursuant to Section 5.01(q) as notified to the Administrative Agent by the Parent Borrower on or prior to the Effective Date. (~~viii~~ix) A The Debenture and such other security agreements, pledges, mortgages, assignments, charges and other agreements and documents (in each case, as amended, supplemented or otherwise modified in accordance with its terms, the "FOREIGN SECURITY DOCUMENTS"), in each case in form and substance satisfactory to the Administrative Agent, as the Administrative Agent may request to secure payment of all Obligations of the Specified Subsidiaries and the other Foreign Guarantors under the Loan Documents, duly executed by the applicable Foreign Guarantor, together with: (A) an administrative agency agreement in substantially the form of Exhibit ~~D-2~~ J hereto (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Uniroyal~~ ADMINISTRATIVE AGENCY AGREEMENT"), duly executed by the Sub Borrower and the Administrative Agent, and (B) evidence that all actions that may be necessary or, in the reasonable discretion of the Administrative Agent, desirable in order to perfect and protect the first priority liens, security interests, pledges and charges created by the Foreign Security ~~Agreement" and~~Documents under the laws of the jurisdiction of the applicable Foreign Guarantor have been taken, ~~together with~~ except to the ~~Crompton Security Agreement~~ extent that such actions are to be taken, and ~~each security agreement delivered~~ such evidence is to be delivered, pursuant to Section ~~5.01(k~~5.01(q) as notified to the Administrative Agent by the Parent Borrower on or prior to the Effective Date. (x) A guaranty in substantially the form of Exhibit E-1 hereto (together with each other guaranty and guaranty supplement delivered by a Domestic Guarantor pursuant to Section 5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Security Agreement~~DOMESTIC GUARANTY"), duly executed by ~~the Uniroyal Borrower and~~ each ~~Uniroyal~~ Domestic Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A a guaranty in substantially the form of Exhibit E-2 hereto (together with each other guaranty and guaranty supplement delivered by a Foreign Guarantor pursuant to Section ~~5.01(k~~5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Subsidiary Guaranty~~FOREIGN GUARANTY"), duly executed by each ~~Subsidiary~~ Foreign Guarantor. (xi) Certified copies of each of the Related ~~Documents,~~ Documents duly executed by each of the parties thereto and in form and substance satisfactory to the Agents and the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 odocume

Appears in 1 contract

Sources: Credit Agreement (Ipc Information Systems Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (d) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (e) There shall have occurred no ~~material adverse change in the business~~Material Adverse Change since February 1, ~~condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect~~ 1997. Nothing shall have come to the ~~Merger and~~ attention of the ~~other transactions contemplated by this Agreement~~Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, ~~Crompton Corp. and its Subsidiaries~~incorrect or incomplete in any material respect. Without limiting the generality of the foregoing, ~~taken as a whole, since December 31, 1995, (ii) after giving effect~~ the Lenders shall have been given such access to the ~~Merger~~ management, records, books of account, contracts and properties of the ~~other transactions contemplated by this Agreement, Crompton Corp.~~ Borrower and its Subsidiaries ~~(other than Uniroyal Corp. and its Subsidiaries), taken~~ as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995they shall have reasonably requested. (fb) 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) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this ~~Agreement,~~ Agreement or any ~~Note, any other Loan Document, any Related Document~~ Note or the consummation of the transactions contemplated hereby~~, and there~~ . (c) All amounts owing under the Existing Credit Agreement shall have been ~~no material adverse change~~ (or shall be concurrently with the Initial Extension of Credit) paid in full in cash (or otherwise satisfied with respect to Existing Letters of Credit and the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(f). (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.Existing Competitive Bid Advances) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts all Commitments (as defined in the ~~Uniroyal Security~~ Existing Credit Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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~~terminated. (id) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with ~~Loan Documents and~~ the transactions contemplated ~~thereby (including, without limitation, the Merger)~~ hereby shall have been obtained (without the imposition of any conditions that are not ~~reasonably~~ acceptable to the Lender Parties) and shall remain in ~~effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers~~effect, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the ~~Loan Documents or the~~ transactions contemplated ~~thereby (including, without limitation, the Merger)~~hereby. (je) The ~~Borrowers~~ Borrower shall have paid all accrued fees and expenses of the ~~Agent~~ Agents and the Lender Parties (including the reasonable accrued fees and expenses of counsel to the ~~Agent and local counsel to the Lender Parties~~Agents). (kf) On the Effective Date, the following statements shall be true and the Paying Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and (ii) No event has occurred and is continuing or would result from the Initial Extension of Credit that constitutes a Default. (g) The Paying Agent shall have received on or before the ~~day of the Initial Extension of Credit~~ Effective Date the following, each dated such ~~day (unless otherwise specified)~~day, in form and substance satisfactory to the Paying Agent ~~(unless otherwise specified)~~ and (except for the Revolving Credit Notes) in sufficient copies for each Lender Party: (i) The Revolving Credit Notes ~~payable~~ to the order of each of the ~~Lenders~~Lenders that have requested Revolving Credit Notes prior to the Effective Date. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower approving this Agreement and ~~each other Loan Party approving the Merger, this Agreement,~~ the Notes~~, each other Loan Document and each Related Document to which it is or is to be a party~~, and of all documents (including, without limitation, charters and bylaws) evidencing other necessary corporate action and governmental ~~and other third party approvals and consents~~approvals, if any, with respect to ~~the Merger,~~ this ~~Agreement,~~ Agreement and the Notes~~, each other Loan Document and each Related Document~~. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of ~~each~~ the Borrower ~~and each other Loan Party~~ certifying the names and true signatures of the officers of ~~such~~ the Borrower ~~or such other Loan Party~~ authorized to sign this ~~Agreement,~~ Agreement and the ~~Notes, each other Loan Document and each Related Document to which they are or are to be parties~~ Notes and the other documents to be delivered ~~hereunder and thereunder~~hereunder. (~~vii~~iv) A ~~security agreement~~ favorable opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Borrower, substantially in ~~substantially~~ the form of Exhibit ~~D-1 (~~E hereto and as ~~amended, supplemented or otherwise modified from time~~ to ~~time in accordance with its terms,~~ such other matters as any Lender Party through the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Paying Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been takenreasonably request. (~~viii~~v) A ~~security agreement in substantially the form~~ favorable opinion of ~~Exhibit D-2 (as amended~~▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements General Counsel for the ~~one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers~~Borrower, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination DatePaying Agent. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xivvi) A ~~supplement to~~ favorable opinion of Shearman & Sterling, counsel for the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment reportAgents, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oAgents.

Appears in 1 contract

Sources: Credit Agreement (Federated Department Stores Inc /De/)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ Acquisition shall have been consummated ~~substantially~~ in accordance with the terms of the ~~Merger~~ Purchase Agreement, without any waiver or amendment not consented to by the ~~Lender Parties~~ Agents of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (b) The ~~Merger~~ Purchase Agreement shall be in full force and effect. (c) Parent shall have received at least $375,000,000 in Net Cash Proceeds of the sale of equity to the Equity Investors, and such Net Cash Proceeds shall have been contributed, directly or indirectly, to the Borrower as a capital contribution and the Borrower shall have received $500,000,000 (less an underwriting spread of 3.5% on the first $350,000,000 and 4.5% on the remaining $150,000,000) in gross cash proceeds of the issuance of the Subordinated Notes. (d) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (de) The ~~Lender Parties~~ Agents shall be satisfied that all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~3.01(e) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties. (ef) ~~There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after~~ Before giving effect to the ~~Merger~~ Acquisition and the other transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole,~~ there shall have occurred no Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995. (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 102 72 court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger~~Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (gh) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ Nothing shall have come to the attention of the Lender Parties during the course of ~~such~~ their 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 ~~Merger~~Acquisition, ~~Crompton Corp.~~ the Borrower and its Subsidiaries would not have good and marketable title to all material assets of ~~Uniroyal Corp.~~ the Company and its Subsidiaries reflected in the Information Memorandum (other than those disposed of in the ordinary course of business) and (iii) that the ~~Merger~~ Acquisition will have a Material Adverse Effect; without limiting the generality of the foregoing, the ~~Lender Parties~~ Agents shall have been given such access to the management, records, books of account, contracts and properties of the ~~Borrowers~~ Loan Parties and their ~~respective~~ Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby ~~(including, without limitation, the Merger)~~ shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the ~~Lender Parties~~Agents) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to ~~any of~~ Holdings or the ~~Borrowers~~Borrower, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the ~~Effective~~ First Closing Date or (z) expose the ~~Agent~~ Arrangers, the Agents or the Lender Parties to personal liability; provided, however, that with respect to the receipt of licenses to sell or serve alcoholic beverages or to engage in gaming, lottery or gambling activities (or the necessary consents or approvals with respect thereto), such condition shall be satisfied if the Agents are reasonably satisfied that licenses have been obtained or that other appropriate mechanisms which will not result in denial or loss of a license or penalties (other than immaterial civil penalties) or put the Borrower or its Subsidiaries at risk of an enforcement action for a violation are in place and, in each case, are expected to remain in place for the foreseeable future without material risk or expectation of losing such ability in the future (other than the risk that any holder of a liquor license or a gaming, lottery or gambling license that complies with the terms and requirements of such license and the relevant law generally bears of nonrenewal) so that after the First Closing Date, alcoholic beverages can continue to be sold or served and gaming activities can continue to be conducted in essentially the same manner and on essentially the same terms (and without any additional material 103 73 restrictions) as before the First Closing Date and in compliance in all material respects with all applicable laws and rules, regulations, statutes, licenses and orders of any governmental authority relating to the sale or service of alcoholic beverages or engaging in gaming, lottery and gambling activities at bowling centers (or related premises) which would reasonably be expected to enable the Borrower and its Subsidiaries to derive, during a 10-month period beginning on the First Closing Date, at least 90% of the total revenues from the sale and/or service of alcoholic beverages and, other than in the State of Washington, gaming, lottery and gambling activities (and from any related management service agreements and leases) during the 10-month period ended October 31, 1995; all applicable waiting periods 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~~ Agents that restrains, prevents or imposes materially adverse conditions upon the Acquisition, the Loan Documents or and the Related Documents and the transactions contemplated ~~thereby (including, without limitation, the Merger).~~thereby, (j) The ~~Borrowers~~ Agents shall be satisfied with all contractual and other arrangements with the Borrower's management. (k) All capital stock of the Borrower shall be owned by Holdings, all capital stock of Holdings shall be owned by Parent and all capital stock of Parent shall be owned by the Equity Investors, and all of the stock of the Borrower's Subsidiaries shall be owned by the Borrower or one or more of the Borrower's Subsidiaries, in each case free and clear of any lien, charge or encumbrance, other than Liens in favor of the Secured Parties. (l) The Agents shall be satisfied that the Borrower and its Subsidiaries will be able to meet their obligations under all Plans, that the Borrower's and its Subsidiaries' 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 Plan and that no termination of, or withdrawal from, any such Plan has occurred or is contemplated that could result in a material liability. (m) The Agents shall be satisfied (i) with the sources, terms and conditions of the equity and the other debt financing for the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents, (ii) that the amount of committed equity and debt financing shall be sufficient to meet the financing requirements of the Acquisition and the other transactions contemplated by the Loan Documents and the Related Documents and (iii) that the amount of transaction fees and expenses payable in connection with the closing of the Acquisition and the other transactions contemplated by the Loan Documents and the 104 74 Related Documents does not exceed the maximum amount previously disclosed to the Initial Lenders. (n) The Lender Parties shall have received audited financial statements of the Borrower and its Subsidiaries for the year ended December 31, 1995, from which financial statements shall be derived a Consolidated pro forma EBITDA of the Borrower and its Subsidiaries of at least $165,000,000 (as reflected in the offering circular for the Subordinated Notes). (o) The Borrower shall have paid all accrued fees of the Lender Parties and all accrued fees and expenses of the ~~Agent~~ Agents and the ~~Lender Parties~~ Arrangers (including the accrued fees and expenses of counsel to the ~~Agent~~ Agents and ~~local~~ the Arrangers and local, foreign and intellectual property counsel to to, and of other experts and advisors retained by, the Agents for the Lender Parties). (kp) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each~~ the Borrower, the Company and each other Loan Party approving the ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and each Related 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 ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of ~~each Borrower~~ the Borrower, the Company and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to ~~such~~ the Borrower's, the Company's or such other Loan Party's charter on file in his office, (B) ~~each Borrower~~ the Borrower, the Company and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) ~~each Borrower~~ the Borrower, the Company and each other Loan Party are duly incorporated and in good standing under the laws of the ~~State of the~~ jurisdiction of its incorporation.. 105 75 (iv) ~~Certified copies~~ A copy of a certificate of ~~merger or other confirmation from~~ the Secretary of State of such states as the Administrative Agent may require, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower, the Company and each other Loan Party are duly qualified and in good standing as foreign corporations in such State ~~of Delaware satisfactory~~ and have filed all annual reports required to be filed to the ~~Lender Parties~~ date of ~~the consummation of the Merger~~such certificate. (v) A certificate of ~~each Borrower~~ the Borrower, the Company and each other Loan Party, signed on behalf of ~~such Borrower or~~ the Borrower, the Company and such other Loan ~~Party, as the case may be,~~ Party 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 Borrower~~ the Borrower, the Company or such other Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(p)(iii), (B) a true and correct copy of the bylaws of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party as a corporation organized under the laws of the ~~State~~ state of its incorporation, and the absence of any proceeding for the dissolution or liquidation of ~~such Borrower~~ the Borrower, the Company or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of ~~each Borrower~~ the Borrower, the Company and each other Loan Party certifying the names and true signatures of the officers of ~~such Borrower or~~ the Borrower, the Company and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit ~~D-1~~ D hereto (together with each other security agreement delivered or to be delivered pursuant to Section 5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Crompton~~ Security Agreement"), duly executed by ~~each Crompton~~ the Borrower and each ~~Crompton Guarantor~~other Loan Party, together with:: 106 76 (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in ~~blank,~~ blank and instruments evidencing the Pledged Debt ~~(except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed 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 liens and security interests created under the ~~Crompton~~ Security Agreement, covering the Collateral described in the ~~Crompton~~ Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name ~~any Crompton Borrower~~ the Borrower, the Company or any ~~Crompton Guarantor~~ other 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 ~~Crompton~~ Security Agreement that the Collateral 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, (F) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment (to the extent required by the terms of the Security Agreement), 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) the Blocked Account Letters referred to in the Security Agreement (to the extent required by the terms of the Security Agreement), duly executed by each Blocked Account Bank referred to in the Security Agreement, and (EH) evidence that all other action that the Collateral Agent may deem necessary or desirable in order to perfect and protect the 107 77 first priority liens and security interests created under the ~~Crompton~~ Security Agreement has been taken. (viii) A An intellectual property security agreement in substantially the form of Exhibit ~~D-2~~ E hereto (~~as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and,~~ together with ~~the Crompton Security Agreement and~~ each other intellectual property security agreement delivered or to be delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Intellectual Property Security Agreement"), duly executed by the ~~Uniroyal~~ Borrower and each ~~Uniroyal Guarantor~~other Loan Party, together ~~with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of~~ with evidence that all ~~jurisdictions~~ action that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Intellectual Property Security Agreement has been taken. (ix) ~~A guaranty~~ Deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit ~~E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x~~F hereto and covering properties listed on Part I of Schedule 4.01(kk) ~~A guaranty in substantially the form~~ and Part I of ~~Exhibit E-2~~ Schedule 4.01(ll) (together with each other ~~guaranty~~ mortgage delivered or to be delivered pursuant to Section ~~5.01(k~~5.01(n), in each case as amended, supplemented or otherwise modified from time to time in accordance with ~~its~~ their terms, the "~~Subsidiary Guaranty~~Mortgages"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oexecuted

Appears in 1 contract

Sources: Credit Agreement (Amf Group Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) ~~The Merger shall have been consummated substantially in accordance with~~ Before giving effect to the ~~terms of the Merger~~ transactions contemplated by this Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement shall be in full force and effect. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (d) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (e) There there shall have occurred no material adverse change in the ~~business,~~ business condition (financial or otherwise), operations, performance, properties or prospects of ~~(i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement~~any Loan Party, ~~Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and~~ any of its Subsidiaries ~~(other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995~~ or ~~(iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole,~~ Limited since September 30, ~~1995~~1997. (fb) 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) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of ~~the Merger,~~ this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (jc) The Borrowers shall have paid all accrued fees and expenses of the Administrative Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel to the Lender Parties). (kd) The Administrative Agent on behalf of the Lender Parties shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~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. (ii) Certified copies of the resolutions of the Board of Directors or Executive Committee of each ~~Borrower,~~ Borrower and each other Loan Party (other than Amdocs Japan Limited and Directory Technology Pty. Ltd.) approving ~~the Merger,~~ this Agreement, the Notes, each other Loan Document and each Related 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 Merger,~~ this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or and such other Loan ~~Party, as the case may be,~~ Party (other than Amdocs Japan Limited and Directory Technology Pty. Ltd.) 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 Borrower or and such other Loan Party since the date of the ~~Secretary of State's~~ certificate referred to in Section ~~3.01(k)(iii)~~3.01(i)(iii) of the Existing Credit Agreement, (B~~) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C~~) the due incorporation and good standing (where applicable) of such Borrower or and such other Loan Party as a corporation organized under the laws of the ~~State~~ jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or and such other Loan Party, (DC) the truth of the representations and warranties 41 37 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. (viiv) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other Loan Party~~ Person authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (~~vii~~v) A security agreement supplement in ~~substantially~~ the form of Exhibit ~~D-1~~ C to the security agreement dated as of January 6, 1998 made by the Grantors named therein in favor of the Administrative Agent (as amended, supplemented or otherwise modified from time to time in accordance with its ~~terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower~~ terms and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor as debtor, together with ~~copies of such~~ each other financing statements, (D) evidence of the completion of all other recordings and filings of or with respect to the Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by ~~the Uniroyal Borrower and each Uniroyal Guarantor~~Amdocs USA, together with: (A) ~~duly~~ certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt, if any, referred to therein indorsed in blank, (B) acknowledgment copies or stamped receipt copies of proper financing ~~statements~~statements or other appropriate filings, ~~to be~~ duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code or other appropriate laws of all jurisdictions 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 ~~Uniroyal~~ Security Agreement, covering the Collateral described in the ~~Uniroyal~~ Security Agreement, (BC) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements or other appropriate filings referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (AB) above that name ~~the Uniroyal~~ any Borrower or any ~~Uniroyal Guarantor~~ other Loan Party as debtor, together with copies of such other financing ~~statements, (C) evidence of the completion of all~~ statements or other ~~recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby~~appropriate filings, (D) ~~evidence~~ copies of the ~~insurance required by the terms of~~ 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 Borrowers, (E) ~~instruments evidencing~~ the Pledged ~~Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ Account Letters referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, ~~and~~ duly executed by each Pledged Account Bank referred to in the Security Agreement, and (~~F)evidence~~ F) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Uniroyal~~ Security Agreement ~~has~~ have been taken. (ixvi) ~~A guaranty~~ An amendment to the deed of charge over shares made by ESM in ~~substantially~~ favor of the ~~form~~ Administrative Agent dated as of ~~Exhibit E-1~~ January 6, 1998 (as amended, supplemented or otherwise 42 38 modified ~~from time to time~~ in accordance with its terms, the "~~Parent Guaranty~~Deed of Charge over Shares"), ~~duly executed by Crompton Corp. (x) A guaranty~~ in substantially the form of Exhibit ~~E-2~~ E, duly executed by ESM, together with evidence that all actions that may be necessary or desirable in order to perfect and protect the first priority liens, security interests and charges created by the Deed of Charge over Shares have been taken. (vii) A consent in substantially the form of Exhibit F, by the Guarantors (as defined in the US Loan Party Guaranty) in favor of the Administrative Agent under the guaranty dated as of January 6, 1998 made by such Guarantors in favor of the Administrative Agent (together with each other guaranty delivered by a Person organized under the laws of the United States or a political subdivision thereof pursuant to Section 5.01(k) or 5.01(l), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Subsidiary~~ US Loan Party Guaranty"), duly executed by each ~~Subsidiary Guarantor~~Guarantor party thereto, consenting to the amendment and restatement contemplated by this Agreement. (xiviii) ~~Certified copies~~ An assumption of ~~each~~ guaranty in substantially the form of Exhibit A to the ~~Related Documents~~US Loan Party Guaranty, 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~~Amdocs USA. (~~xii~~ix) A consent in substantially the form of Exhibit G, by the Guarantors (as defined in the Non-US Loan Party Guaranty) in favor of the Administrative Agent under the guaranty dated as of January 6, 1998 made by such Guarantors in favor of the Administrative Agent (together with each other guaranty delivered by a Person organized under the laws of a jurisdiction outside the United States pursuant to Section 5.01(k) or 5.01(l), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Non-US Loan Party Guaranty"), duly executed by each Guarantor party thereto (other than Amdocs Japan Limited and Directory Technology Pty. Ltd.), consenting to the amendment and restatement contemplated by this Agreement. (x) 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~~employee benefit plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 employees and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, ~~on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis,~~ of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following ~~January 1, 1996~~ the day of the Initial Extension of Credit and on an annual basis for each year thereafter until ~~the Termination Date~~2001. (~~xiii~~xi) ~~Certificates~~A favorable opinion of Reboul, MacMurray, Hewi▇▇, ▇▇▇▇▇▇▇ & ▇ristol, counsel for the Loan Parties, in substantially the form of Exhibit ~~G, attesting~~ H and as to such other matters as any Lender Party through the ~~Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer~~Administrative Agent may reasonably request. (~~xiv~~xii) A ~~supplement to the Uniroyal Security Agreement in respect~~ favorable opinion of ~~Collateral located in the State of Louisiana~~ Care▇ ▇▇▇▇▇▇▇▇, ▇▇unsel for ESM, and Frere Cholmeley Bisc▇▇▇▇, ▇▇unsel for Amdocs UK, in substantially the ~~form~~ forms of ~~Exhibit D-3 (~~Exhibits I-1 and I-2 hereto, and to such other matters as ~~amended, supplemented or otherwise modified from time to time in accordance with its terms,~~ any Lender Party through the ~~"Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors~~Administrative Agent may reasonably request. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (Amdocs LTD)

Conditions Precedent to Initial Extension of Credit. The ~~obligation~~ obligations of ~~each Lender~~ the Lenders to make ~~an Advance or of any Issuing Bank~~ Loans to ~~issue a Letter of Credit~~ the Borrower on the ~~occasion of the Initial Extension of Credit hereunder is~~ DIP Closing Date are subject to the satisfaction or waiver in accordance with Section 9.08 of the following ~~conditions precedent before or concurrently with the Initial Extension of Credit~~conditions: (a) ~~The Merger shall have been consummated substantially in accordance with the terms~~ Each of the ~~Merger Agreement, without any waiver or amendment not consented~~ Loan Documents and other documentation relating to the Loans provided hereunder shall be in form and substance reasonably satisfactory to the Administrative Agent and duly executed and delivered by each of the Loan Parties and each Lender ~~Parties of any material term, provision or condition set forth therein,~~ and ~~in material compliance with all applicable laws.~~other parties thereto; (b) ~~The Merger Agreement~~ Administrative Agent shall be have received, in ~~full force and effect. (c) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization~~ respect of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (d) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished. (e) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 1995. (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) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of the Merger, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender Parties). (k) The Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) ~~The Notes payable~~ copies of each organizational or constitutive document (along with any amendments thereto) certified as of a recent date prior to the ~~order of~~ DIP Closing Date by the ~~Lenders.~~appropriate Governmental Authority; (ii) Certified copies of the resolutions of the Board of Directors of each Borrower, and each other Loan Party approving the Merger, this Agreement, the Notes, each other Loan Document and each Related 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 Merger, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of a certificate of the ~~Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter~~ secretary or an assistant secretary of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other~~ Loan Party authorized to sign ~~this Agreement, the Notes,~~ each ~~other~~ Loan ~~Document and each Related~~ Document to which ~~they are~~ it is or ~~are~~ is to be ~~parties~~ a party and the other documents to be delivered hereunder and thereunder; (iii) resolutions of the board of directors (or similar governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the DIP Closing Date, as well as the transactions contemplated hereunder and the commencement of the Chapter 11 Cases, certified as of the DIP Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and (iv) a good standing certificate, where applicable, from the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation dated as of a recent date prior to the DIP Closing Date. (~~vii~~c) ~~A security agreement~~ The Chapter 11 Cases shall have been commenced by the Debtors, and the Administrative Agent shall be reasonably satisfied with (x) the form and substance of the First Day Orders sought by the Debtors and entered on or promptly following the DIP Closing Date (including a cash management order) and (y) the motion to approve the Credit Facilities and First Day Orders. (d) The Administrative Agent shall have received a signed copy of an order entered by the Bankruptcy Court no later than five (5) days after the Petition Date in substantially the form of Exhibit ~~D-1~~ E, which shall be satisfactory in form and substance to the Administrative Agent (the “Interim Order”) and confirmation that the Interim Order has been entered on the docket, which Interim Order (i) shall approve the Loan Documents and grant the Obligations of the Loan Parties hereunder Superpriority Claim status and the Liens described in Section 5.13, (ii) shall authorize extensions of credit in the aggregate amounts of up to $130,000,000 of asset-based revolving loans under the DIP ABL Facility and up to $300,000,000 of term loans under this Agreement, (iii) shall approve the Loan Parties’ performance under the Commitment Letter and the payment by the Borrower of all of the fees and expenses that are required to be paid hereunder and the Commitment Letter; (iv) shall authorize and direct the Loan Parties immediately to repay in full Obligations (as ~~amended~~defined under the Prepetition Credit Agreement); (v) shall authorize the use by the Loan Parties of any collateral including cash collateral in which any Prepetition Secured Party or any Adequate Protection Party may have an interest; (vi) shall provide for Adequate Protection Payments and grant customary adequate protection claims and Liens to the Prepetition Secured Parties, ~~supplemented~~ which claims and Liens shall be junior to those claims and Liens of the Administrative Agent and the Lenders hereunder, as adequate protection of the Adequate Protection Parties’ interests in the Prepetition Collateral from diminution in value of their collateral resulting from the Loan Parties’ use, sale or ~~otherwise modified from time to time in accordance with its terms~~lease of the Prepetition Collateral (including cash collateral), the ~~"Crompton Security Agreement")~~imposition of the automatic stay pursuant to section 362 of the Bankruptcy Code and the priming Liens described in Section 5.13; (vii) shall be in full force and effect; and (viii) shall not have been vacated, ~~duly executed by each Crompton Borrower~~ reversed, modified, amended or stayed; and ~~each Crompton Guarantor, together with:~~the Debtors are in compliance with the terms and conditions of the Interim Order. (Ae) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank, and instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, All accrued fees required to be ~~filed under~~ paid to the ~~Uniform Commercial Code~~ Administrative Agent, the Joint Lead Arrangers and the Lenders (including pursuant to the Commitment Letter) as of the DIP Closing Date shall have been paid and all ~~jurisdictions that~~ reasonable and documented out-of-pocket fees and expenses (including reasonable and documented fees and expenses of outside counsel) required to be paid to the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the ~~date~~ DIP Closing Date shall have been paid (including fees owed to the Lenders to be paid to the Administrative Agent for the accounts of the ~~Initial Extension of Credit, listing all effective financing statements filed~~ Lenders). (f) The Administrative Agent shall have received and be reasonably satisfied with the Thirteen-Week Projections (as defined in the ~~jurisdictions referred to~~ ABL Credit Agreement) for the first thirteen-week period after the Petition Date. (g) The Administrative Agent shall be satisfied in ~~clause~~ its reasonable judgment that there shall not occur as a result of, and after giving effect to, the initial Credit Event, a default (~~B) above that name any Crompton Borrower~~ or any ~~Crompton Guarantor~~ event which with the giving of notice or lapse of time or both would be a default) under any of the Loan Parties’ or their respective subsidiaries’ debt instruments and other material agreements which, (i) in the case of the Loan Parties’ debt instruments and other material agreements, would permit the counterparty thereto to exercise remedies thereunder after the DIP Closing Date or (ii) in the case of any other subsidiary, could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (h) The Administrative Agent and its counsel shall have received a favorable written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, and each local counsel listed on Schedule 4.02(h), in each case dated as ~~debtor~~of the DIP Closing Date, ~~together~~ addressing such matters as the Administrative Agent may reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. (i) Since December 31, 2013, there has been no event or occurrence that has had a Material Adverse Effect. (j) There shall not exist any action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Chapter 11 Cases and any action, suit, investigation or proceeding arising from the commencement and continuation of the Chapter 11 Cases or the consequences that would normally result from the commencement and continuation of the Chapter 11 Cases) that is not stayed or could reasonably be expected to result in a Material Adverse Effect. (k) All necessary governmental and third party consents and approvals necessary in connection with ~~copies~~ the Credit Facilities and the transactions contemplated thereunder shall have been obtained (without the imposition of any adverse conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; and no law or regulation (other than the Bankruptcy Code) shall be applicable to the Administrative Agent that prevents the establishment of the Credit Facilities or the consummation of the transactions contemplated thereunder. (l) Each Lender who has requested the same at least ten Business Days prior to the DIP Closing Date shall have received, at least one Business Day prior to the DIP Closing Date, “know your customer” and similar information. (m) Evidence that, such other ~~financing statements, (D) evidence of the completion of all other recordings and filings of~~ documents, instruments or ~~with respect to the Crompton Security Agreement that the Agent may deem~~ actions deemed necessary or ~~desirable in order~~ advisable by the Administrative Agent to perfect and protect the Liens ~~created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens~~ and security interests created ~~under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented~~ or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, purported to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the ~~Uniroyal Security~~ Debtors, pursuant to the Interim Order, the Guarantee Agreement ~~that~~ and the ~~Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security~~ Collateral Agreement~~, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank~~, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered perfected pursuant to ~~Section 5.01(k)~~applicable Requirements of Law, in each ~~case as amended~~case, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (xii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have ~~requested~~been duly delivered or completed, 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 the delivery of Uniform Commercial Code financing statements of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end in proper form for filing for all applicable jurisdictions of the ~~most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp.~~ Loan Parties and ~~its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements~~ provision having been made for the ~~one-year period ended on~~ payment of any fees or ~~about March 31~~taxes required in connection with the filing of such documents, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Dateinstruments or financing statements. (~~xiii~~n) ~~Certificates~~Concurrently with the initial extension of credit hereunder, ~~in substantially~~ the ~~form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer~~ABL Credit Agreement shall have become effective. (~~xiv~~o) ~~A supplement to~~ Substantially simultaneously with the ~~Uniroyal Security Agreement in respect~~ effectiveness of ~~Collateral located~~ this Agreement, the Obligations (as defined in the ~~State of Louisiana~~ Prepetition Credit Agreement) shall have been repaid in ~~substantially~~ full, and the ~~form of Exhibit D-3~~ Aggregate Revolving Facility Commitments (as ~~amended, supplemented or otherwise modified from time to time~~ defined in ~~accordance with its terms,~~ the ~~"Louisiana Undertaking"), duly executed by~~ Prepetition Credit Agreement) other than those of the ~~Uniroyal Borrower and~~ Existing Lenders (as defined in the ~~Uniroyal Guarantors~~ABL Credit Agreement) shall have been terminated. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Senior Secured Debtor in Possession Term Loan Agreement (Momentive Performance Materials Inc.)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) ~~The Merger~~ Holders of no fewer than the minimum number of shares of Company Stock specified in the Offer to Purchase shall have ~~been consummated substantially~~ validly tendered such Company Stock pursuant to the Tender Offer and shall not have withdrawn such Company Stock; the Borrower shall have accepted such Company Stock for payment, and shall have paid the Depositary for such Company Stock, strictly in accordance with the terms of the Offer to Purchase and the Merger Agreement, without any waiver or amendment not consented to by the ~~Lender Parties~~ Lenders of any ~~material~~ term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws; and the Lenders shall be satisfied in their sole discretion that the restric- tions in Section 203 of the Delaware General Corporation Law are not applicable to the purchase of the Company Stock or the Merger or that any conditions to avoiding the restrictions contained therein have been satisfied. (b) The Company's Board of Directors shall have approved the Tender Offer and the Merger and recommended that its shareholders tender their Company Stock pursuant to the Tender Offer, and such recommendation shall not have been withdrawn or qualified. (c) The Merger Agreement shall be in full force and ~~effect~~effect and shall not have been terminated. (cd) All shares of Company Stock owned by Affiliates of the Borrower shall have been contributed to the Borrower. (e) Holdings shall have received $60,000,000 in Net Cash Pro- ceeds of the sale of equity to be issued upon the Tender Offer, and all of such Net Cash Proceeds shall have been contributed by Holdings to the Borrower as equity and shall have been used by the Borrower solely to pay to the holders of the Company Stock (other than the Borrower) a portion of the cash consideration for their shares in the Tender Offer and to pay transaction fees and expenses. (f) The ~~Lender Parties~~ aggregate amount of transaction fees and expenses payable by or on behalf of the Borrower, the Company or any of its Subsidiaries to each of the Persons rendering advice or providing services or financing in connection with the Tender Offer shall not exceed $6,000,000. (g) The Lenders shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and ~~each~~ of its ~~Subsidiaries~~Subsidiar- ies, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such ~~Subsidiary~~ Subsid- iary and of each agreement or instrument relating to such structure or capitalization. (dh) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.[Intentionally Omitted] ~~(e) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of~~ (i) ~~before and after~~ Before giving effect to the ~~Merger~~ Tender Offer and the other transactions contemplated by this Agreement, ~~Crompton Corp. and its Subsidiaries, taken as a whole,~~ there shall have occurred no Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 19951996. (fj) There shall exist no action, suit, investigation, litigation or proceeding affecting W▇▇▇▇ ▇▇▇▇▇▇, any other Loan Party or any of ~~its~~ such other Loan Party's Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the Tender Offer, the Merger, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (gk) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ Nothing shall have come to the attention of the ~~Lender Parties~~ Lenders during the course of ~~such~~ their due diligence investigation to lead them to believe (i) that the ~~Information Memorandum~~ information, exhibits and reports furnished to the Lenders prior to issuing their Commitments (the "Pre-Commitment ______________ Information") was or has become misleading, incorrect or incomplete in ___________ any material respect, (ii) ~~that, following~~ that the ~~consummation of the Merger, Crompton Corp. and its Subsidiaries would~~ Company does not have good and marketable title to all material assets of ~~Uniroyal Corp.~~ the Company and its ~~Subsidiaries~~ Subsid- iaries reflected in the Pre-Commitment Information ~~Memorandum~~ and (iii) that the Tender Offer or the Merger will have a Material Adverse Effect; without limiting the generality of the foregoing, the ~~Lender Parties~~ Lenders shall have been given such access to the management, records, books of account, contracts and properties of the ~~Borrowers~~ Company and ~~their respective~~ its Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (jl) The ~~Borrowers~~ Borrower shall have paid all accrued fees and expenses of the Agent and the ~~Lender Parties~~ Lenders (including the accrued fees and expenses of counsel to the ~~Agent and local counsel to the Lender Parties~~Agent). (km) The Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Agent~~ Lenders (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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each~~ Holdings and the Borrower, ~~and each other Loan Party~~ approving the Tender Offer, the Merger, this Agreement, the Notes, each other Loan Document and each Related 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 Tender Offer, the Merger, this Agreement, the Notes, each other Loan Document and each Related Document. (iii) Certified copies of the resolutions of the Board of Directors of the Company approving the Tender Offer, the Merger and each Related Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Tender Offer, the Merger and each Related Document. (iv) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of ~~each~~ Holdings, the Borrower and ~~each other Loan Party~~ the Company and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to ~~such~~ Holdings', the Borrower's or ~~such other Loan Party~~the Company's charter on file in his office, (B) ~~each~~ Holdings, the Borrower and ~~each other Loan Party~~ the Company have paid all franchise taxes to the date of such ~~certificate~~ certif- icate and (C) ~~each~~ Holdings, the Borrower and ~~each other Loan Party~~ the Company are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (~~iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (~~v) A certificate of ~~each Borrower and each other Loan Party~~the Borrower, signed on behalf of ~~such~~ the Borrower ~~or such other Loan Party, as the case may be,~~ and Holdings 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~~ certif- icate shall be true on and as of the date of the Initial ~~Extension~~ Exten- sion of Credit), certifying as to (A) the absence of any ~~amendments~~ amend- ments to the charter of ~~such~~ the Borrower or ~~such other Loan Party~~ Holdings since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(m)(v), (B) a true and correct copy of the bylaws of ~~such~~ the Borrower ~~or such other Loan Party~~ and Holdings as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of ~~such~~ the Borrower ~~or such other Loan Party~~ and Holdings as a corporation organized under the laws of the State of ~~its incorporation~~Delaware, and the absence of any proceeding for the dissolution or liquidation of ~~such Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant ~~Secretary~~ Secre- tary or other authorized officer of ~~each~~ the Borrower and ~~each other Loan Party~~ Holdings certifying the names and true signatures of the officers of ~~such~~ the Borrower ~~or such other Loan Party~~ and Holdings authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A ~~security~~ pledge agreement in substantially the form of Exhibit ~~D-1 (~~D hereto as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Crompton Security~~ Borrower ________ Pledge Agreement"), duly executed by ~~each Crompton Borrower and each Crompton Guarantor~~the Borrower, together with:: ________________ (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in ~~blank,~~ blank and instruments evidencing the Pledged Debt ~~(except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Crompton Security~~ Borrower Pledge Agreement, covering the Collateral described in the ~~Crompton Security~~ Borrower Pledge Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (EC) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Crompton Security~~ Borrower Pledge Agreement has been taken. (viii) A ~~security~~ pledge agreement in substantially the form of Exhibit ~~D-2 (~~E hereto as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Holdings ________ Pledge Agreement"), duly executed by ~~the Uniroyal Borrower and each Uniroyal Guarantor~~Holdings, 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) duly executed proper financing statements, to be filed ~~on or before the day of the Initial Extension of Credit~~ under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Uniroyal Security~~ Holdings Pledge Agreement, covering the Collateral described in the ~~Uniroyal Security~~ Holdings Pledge Agreement~~, (B) completed requests for information~~, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements,and (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the ~~Uniroyal Security~~ Holdings Pledge Agreement has been taken. (ix) A ~~guaranty~~ security agreement in substantially the form of Exhibit ~~E-1~~ F hereto (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Parent Guaranty~~Security ________ Agreement"), duly executed by ~~Crompton Corp.~~the Borrower and Holdings, together _________ with: (A) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the 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, (B) copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Borrower, and (C) evidence that all other action that the 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. (x) A guaranty in substantially the form of Exhibit ~~E-2~~ G hereto (~~together with each other guaranty delivered pursuant to Section 5.01(k), in each case~~ as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Subsidiary~~ Holdings Guaranty"), _________________ duly executed by Holdings. (xi) A guaranty in substantially the form of Exhibit H hereto (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "W▇▇▇▇ ▇▇▇▇▇▇ Guaran- ____________________ ty"), duly executed by ~~each Subsidiary Guarantor.~~W▇▇▇▇ ▇▇▇▇▇▇. __ (xixii) Federal Reserve Forms U-1 provided for in Regula- tion U, the statements made in which shall be such as to permit the transactions contemplated hereby in accordance with Regula- tion U. (xiii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the ~~Lender Parties~~Lenders, together with all agreements, instruments and other documents delivered in connection ~~therewith~~there- with. (~~xii~~xiv) 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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, Certificates in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit GAgent, attesting to the Solvency of ~~each Loan Party~~ Holdings and the Surviv- ing Corporation on a pro forma basis after giving effect to the Merger and the other transactions contemplated hereby, from ~~its~~ the chief financial ~~officer~~officers of Holdings and the Borrower. (~~xiv~~xv) A ~~supplement to~~ favorable opinion of Reboul, MacMurray, H▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol, counsel for the ~~Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana~~ Loan Parties, in substantially the form of Exhibit ~~D-3 (~~I hereto and as ~~amended, supplemented or otherwise modified from time~~ to ~~time in accordance with its terms,~~ such other matters as any Lender through the ~~"Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors~~Agent may reasonably request. (xvxvi) ~~An environmental assessment report~~A favorable opinion of Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 oAgent.

Appears in 1 contract

Sources: Credit Agreement (Cdsi Acquisition Corp)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The Transaction, including all of the terms and conditions thereof, shall have been duly approved by the board of directors and (if required by applicable law) the shareholders of the parties thereto, and all Related Documents shall have been duly executed and delivered by the parties thereto and shall be in full force and effect. The representations and warranties set forth in the Related Documents shall be true and correct in all material respects as if made on and as of the date of the Initial Extension of Credit, except to the extent that such representations and warranties are stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date. (b) The Merger shall have been consummated ~~substantially~~ strictly in accordance with the terms of the Merger Agreement, and the Share Exchange shall have been consummated strictly in accordance with the terms of the Share Exchange and Termination Agreement, in each case without any waiver or amendment not consented to by the Agents and the Lender Parties of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (~~b) The Merger Agreement shall be in full force and effect. (~~c) The Agents and the Lender Parties shall be satisfied with the corporate and legal ~~structure~~ structure, ownership and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such ~~structure~~ structure, ownership or capitalization. (d) The Parent Borrower shall have received at least $149,935,000 (exclusive of any over funding amount) in Net Cash Proceeds from the issuance of the Senior Notes. (e) The Parent Borrower shall have received Net Cash Proceeds from the issuance of common stock to the Equity Investors in an amount at least equal to the product of $80,000,000 and the percentage of common stock of the Parent Borrower to be owned, directly or indirectly, by the Equity Investors after giving effect to the Transaction, all on terms and conditions satisfactory to the Agents and the Lender Parties. (f) No Borrowings shall be required or made on the Effective Date in connection with the consummation of the Transaction. (g) The Agents and the Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~4.01(gg) hereto (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or -------------- otherwise satisfied and ~~extinguished~~extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Agents and the Lender Parties. (eh) ~~There~~ Before giving effect to the Transaction, there shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, Material Adverse Change since September 30, ~~1995~~1997. (fi) 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 of either Borrower's knowledge, threatened before any court, governmental agency or arbitrator that (i) ~~would~~ could be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger, this Agreement~~Transaction, any ~~Note, any other~~ Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f)Transaction. (gj) ~~The Lender Parties shall have completed a due diligence investigation of the Borrowers and their respective Subsidiaries in scope, and with results, satisfactory to the Lender Parties, and nothing~~ Nothing shall have come to the attention of the Lender Parties during the course of ~~such~~ their due diligence investigation to lead them to believe (i) that the ~~Information Memorandum~~ information relating to the Loan Parties furnished to the Lender Parties prior to the Effective Date was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the ~~Merger~~Transaction, ~~Crompton Corp.~~ the Parent Borrower and its Subsidiaries would not have good and marketable title to all material assets of ~~Uniroyal Corp.~~ the Parent Borrower and its Subsidiaries reflected in the ~~Information Memorandum~~ information relating to the Loan Parties furnished to the Lender Parties prior to the Effective Date and (iii) that the ~~Merger~~ 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 ~~Borrowers~~ Parent Borrower and ~~their respective~~ its Subsidiaries as they shall have requested. (hk) All ~~stock~~ accrued costs, fees and expenses of the ~~Borrowers (other than Crompton Corp.)~~ Agents and the ~~Borrowers' Subsidiaries,~~ Lender Parties to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; all filings, recordations and searches necessary or desirable in connection with such liens and security interests due shall have been ~~duly made; and all filing and recording~~ paid (including the accrued costs, fees and ~~taxes shall have been duly paid~~expenses of counsel to the Agents and local counsel to the Lender Parties). (l) The Agents and the Lender Parties shall be satisfied that (i) ~~All~~ all requisite governmental and other third party licenses, permits, approvals and consents ~~and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with ~~Loan Documents~~ the Initial Extension of Credit and for the ~~transactions contemplated thereby (including, without limitation,~~ consummation of the ~~Merger)~~ Transaction shall have been obtained (without the imposition of any conditions that are not ~~reasonably~~ acceptable to the Agents and the Lender Parties) and ~~shall~~ remain in ~~effect other than such governmental or third party consents~~ effect, and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed all applicable appeal periods and ~~delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability;~~ all applicable waiting periods (including, without limitation, the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended) 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~~ Parties, in each case, that restrains, prevents or imposes ~~materially~~ adverse conditions upon the ~~Loan Documents~~ consummation of the Transaction or the ~~transactions contemplated thereby~~ rights of the Loan Parties or their Subsidiaries freely to the transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them and (ii) the Initial Extension of Credit, and all other financing for the Transaction (including, without limitation, the ~~Merger)~~issuance of common stock of the Parent Borrower to AAC and the issuance of the Senior Notes) shall be in full compliance with all legal and regulatory requirements, including, without limitation, Regulations G, T, U and X of the Board of Governors of the Federal Reserve System. (jm) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Agent and local counsel to the Lender Parties). (k) The Administrative Agent shall have received on or before the ~~day~~ date of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Agent~~ Agents and the 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. (ii) Certified copies of (A) the resolutions of the Board of Directors (or persons performing similar functions) of each ~~Borrower, and each other~~ Loan Party approving the ~~Merger, this Agreement, the Notes~~Transaction, each ~~other~~ Loan Document and each Related Document to which it is or is to be a party, and of (B) all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the ~~Merger, this Agreement, the Notes~~Transaction, each ~~other~~ Loan Document and each Related ~~Document~~Document to which it is or is to be a party. (iii) A copy of a certificate of the Secretary of State or other appropriate governmental official of the jurisdiction of ~~its incorporation~~incorporation of each Loan Party, dated reasonably near the date of the Initial Extension of Credit, ~~listing~~ certifying, where applicable, (A) as to a true and correct copy of the charter or other constitutive document of ~~each Borrower and each other~~ such Loan Party and each amendment thereto on file in ~~his~~ that office and ~~certifying~~ (B) that (A1) such amendments are the only amendments to such ~~Borrower's or such other~~ Loan Party's charter or other constitutive document on file in ~~his~~ that office, (B2) ~~each Borrower and each other~~ such Loan Party ~~have~~ has paid all franchise taxes to the date of such certificate and (C3) ~~each Borrower and each other~~ such Loan Party ~~are~~ is duly incorporated and in good standing or presently subsisting under the laws ~~of the State~~ of the jurisdiction of its incorporation. (iv) A copy of a certificate of the Secretary of State of the States of Connecticut, New York and _________________ and, where applicable, a certificate of such other appropriate governmental official in all other appropriate jurisdictions, in each case, dated reasonably near the date of the Initial Extension of Credit, stating that each Loan Party is duly qualified and in good standing as a foreign corporation in such State or other jurisdiction and has filed all annual reports required to be filed to the date of such certificate. (v) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Agents and the Lender Parties of the consummation of the Merger. (vvi) A certificate of each ~~Borrower and each other~~ Loan Party, signed on behalf of such ~~Borrower or such other~~ Loan ~~Party, as the case may be,~~ Party by its President or a any 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 ~~Borrower or such other~~ Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(m)(iii), (B) a true and correct copy of the bylaws of such ~~Borrower or such other~~ Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(m)(ii) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation and good standing or valid existence of such ~~Borrower or such other~~ Loan Party as a corporation organized under the laws of the ~~State~~ jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such ~~Borrower or such other~~ Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents and the Related 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. (vivii) A certificate of the Secretary or an Assistant Secretary of each ~~Borrower and each other~~ Loan Party certifying the names and true signatures of the officers of such ~~Borrower or such other~~ Loan Party authorized to sign ~~this Agreement, the Notes,~~ each ~~other~~ Loan Document and each Related Document to which ~~they are~~ it is or ~~are~~ is to be ~~parties~~ a party and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit ~~D-2~~ D hereto (~~as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and,~~ together with ~~the Crompton Security Agreement and~~ each other security agreement and security agreement supplement delivered pursuant to Section ~~5.01(k~~5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by ~~the Uniroyal Borrower and~~ each ~~Uniroyal Guarantor~~Loan ------------------ Party, together with: (A) ~~duly~~ certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments, including, without limitation, the Intercompany Notes, evidencing the Pledged Debt referred to therein indorsed in blank, (B) acknowledgment copies or stamped receipt copies of proper financing statements, ~~to be~~ duly filed on or before the ~~day~~ date of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions 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 ~~Uniroyal~~ Security Agreement, covering the Collateral described in the ~~Uniroyal~~ Security Agreement, (BC) 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 (AB) above that name ~~the Uniroyal Borrower or~~ any ~~Uniroyal Guarantor~~ Loan Party as debtor, together with copies of such other financing statements, (CD) evidence of the completion of all recordings and filings of or with respect to the Intellectual Property Collateral referred to in the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created hereunder. (E) evidence of the completion of all other recordings and filings of or with respect to the ~~Uniroyal~~ Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, including, without limitation, (DF) evidence of the insurance required by the terms of the Security Agreement, (EG) ~~instruments evidencing~~ copies of the Assigned Agreements referred to in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, (H) the Pledged ~~Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii))~~ Account Letters referred to ~~therein endorsed~~ in ~~blank~~the Security Agreement, ~~and~~ duly executed by each Pledged Account Bank referred to in the Security Agreement, and (~~F)evidence~~ I) evidence that all other 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 ~~Uniroyal~~ Security Agreement has been ~~taken~~taken (including, without limitation, such pledge, charge or other similar agreements as the Administrative Agent may request pursuant to which a Domestic Subsidiary pledges stock or other ownership interest in a Foreign Subsidiary to the Administrative Agent). (ix) ~~A guaranty~~ Such security agreements, pledges, mortgages, assignments, charges and other agreements and documents (in each case, as amended, supplemented or otherwise modified in accordance with its terms, the "Foreign Security Documents"), in each case in form and substance --------------------------- satisfactory to the Administrative Agent, as the Administrative Agent may request to secure payment of all Obligations of the U.K. Subsidiaries and the other Foreign Guarantors under the Loan Documents, duly executed by the applicable Foreign Guarantor, together with: (A) an administrative agency agreement in substantially the form of Exhibit ~~E-1~~ J hereto (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Parent Guaranty~~Administrative Agency Agreement"), duly executed by ~~Crompton Corp.~~the Sub -------------------------------- Borrower and the Administrative Agent, and (B) evidence that all actions that may be necessary or, in the sole discretion of the Administrative Agent, desirable in order to perfect and protect the first priority liens, security interests, pledges and charges created by the Foreign Security Documents under the laws of the jurisdiction of the applicable Foreign Guarantor, have been taken. (x) A guaranty in substantially the form of Exhibit ~~E-2~~ E-1 hereto (together with each other guaranty and guaranty supplement delivered by a Domestic Guarantor pursuant to Section ~~5.01(k~~5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "~~Subsidiary~~ Domestic Guaranty"), duly executed by each ~~Subsidiary~~ Domestic Guarantor., ----------------- and a guaranty in substantially the form of Exhibit E-2 hereto (together with each other guaranty and guaranty supplement delivered by a Foreign Guarantor pursuant to Section 5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Foreign Guaranty"), duly executed by each Foreign Guarantor. ---------------- (xi) Certified copies of each of the Related ~~Documents,~~ Documents duly executed by each of the parties thereto and in form and substance satisfactory to the Agents and the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith. (xii) Such financial, business and other information regarding each Loan Party and each of 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 ~~of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries)~~ dated ~~December~~ September 30, ~~1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995~~1997, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowersavailable (or, in ~~form and substance satisfactory to~~ the event the Lender Parties' due diligence review reveals material changes since such financial statements, on as of a ~~Consolidated basis and, to~~ later date within 45 days of the ~~extent otherwise available, on a Consolidating basis,~~ day of ~~balance sheets, income statements and cash flow statements for~~ the ~~first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form~~ Initial Extension of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"Credit), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 opro form

Appears in 1 contract

Sources: Credit Agreement (Ipc Information Systems Inc)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ Acquisition shall have been consummated ~~substantially~~ in accordance in all material respects with the terms of the ~~Merger~~ Stock Purchase Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in ~~material~~ compliance with all applicable laws. (b~~) The Merger Agreement shall be in full force and effect. (c~~) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan ~~Party and each of its Subsidiaries~~Party, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and ~~each such Subsidiary and~~ of each agreement or instrument relating to such structure or capitalization. (dc) The Lender Parties shall be satisfied that all ~~Existing Debt, other than the~~ Debt identified on Schedule ~~3.01(d~~3.01(c) (the "Surviving Debt"~~), has been prepaid, redeemed or defeased in full or otherwise satisfied~~ ) is on terms and ~~extinguished~~conditions reasonably satisfactory to the Lender Parties. (ed) There shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 19951996. (fe) There shall exist no action, suit, investigation, litigation or proceeding affecting ~~any Loan Party~~ the Borrower or any of its Subsidiaries pending or or, to the best of the Borrower's knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger~~Acquisition, this Agreement, any Note, any other Loan ~~Document, any Related~~ Document or the ~~consummation~~ Stock Purchase Agreement. (f) The Borrower shall have made available to the Lender Parties the books and records of the ~~transactions contemplated hereby,~~ Borrower and ~~there shall~~ its Subsidiaries and such other information regarding the Borrower and its Subsidiaries as any Lender Party may have ~~been no material 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 3.01(f)~~reasonably requested. (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers Borrower shall have paid all accrued fees and expenses of the Agent and the ~~Lender Parties~~ Arranger payable hereunder (including the accrued reasonable fees and expenses of counsel to the ~~Agent and local counsel~~ Agent) to the ~~Lender Parties)~~extent that the Borrower shall have received invoices therefor before the Effective Date. (kh) [Intentionally omitted]. (i) The Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) The Credit Agreement executed by the Borrower and Notes payable to the order of the Lenders. (ii) Certified copies of the resolutions of the Board of Directors of each ~~Borrower~~Loan Party approving, in the case of the Borrower and the Company, the Acquisition and the Stock Purchase Agreement, and in the case of each ~~other~~ Loan ~~Party approving the Merger~~Party, this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ Document to which it is or is to be a party, and copies of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the ~~Merger~~Acquisition, this Agreement, the Notes, each other Loan Document and ~~each Related Document~~the Stock Purchase Agreement. (iii) A copy of ~~a certificate~~ the charter of the ~~Secretary~~ Borrower and each other Loan Party and each amendment thereto, certified (as of ~~State of the jurisdiction of its incorporation, dated~~ a date reasonably near the date of the Initial Extension of Credit~~, listing~~ ) by the ~~charter~~ Secretary of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its ~~incorporation~~incorporation as being a true and correct copy thereof. (iv) ~~Certified copies~~ Certificates of qualification to do business and good standing, issued in respect of each Loan Party as of a ~~certificate~~ date reasonably near the date of ~~merger or other confirmation from~~ the Initial Extension of Credit by the Secretary of State of ~~the State~~ each Loan Party's jurisdiction of ~~Delaware satisfactory to the Lender Parties~~ incorporation and, where different, each United States jurisdiction in which such Loan Party has its principal place of ~~the consummation of the Merger~~business or executive offices. (v) A certificate of ~~each~~ the Borrower and each other Loan ~~Party,~~ Party signed on behalf of ~~such~~ the Borrower or such other Loan ~~Party, as the case may be,~~ Party by ~~its President or~~ a ~~Vice President and its Secretary or any Assistant Secretary~~Responsible Officer, 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~~ the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section ~~3.01(k)(iii~~3.01(i)(iii), (B) a true and correct copy of the bylaws of ~~such~~ the Borrower or and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the ~~due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the~~ absence of any proceeding for the dissolution or liquidation of ~~such~~ the Borrower or such other Loan Party, (D) the truth of the representations and warranties of such Loan Party contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit (except to the extent such representations and warranties relate solely to an earlier date) and (E) in the case of the Borrower, the absence of any event occurring and continuing, or resulting from the Initial Extension of ~~Credit~~Credit or the consummation of the Acquisition, that constitutes a Default. (vi) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each other Loan Party certifying the names and true signatures of the officers of ~~such~~ the Borrower or and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and ~~each Related Document~~ the Stock Purchase Agreement to which ~~they are~~ it is or ~~are~~ is to be ~~parties~~ a party and the other documents to be delivered hereunder and thereunder. (vii) A ~~security agreement~~ guaranty in substantially the form of Exhibit ~~D-1~~ D (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Domestic Subsidiary ~~Guarantor~~designated by the Borrower, which shall include Hybritech Incorporated, a California corporation, SmithKline Diagnostics, Inc., a Delaware corporation, and Beck▇▇▇ ▇▇▇truments (Naguabo) Inc., a California corporation and, upon consummation of the Acquisition, the Company and Coul▇▇▇ ▇▇▇sing Corporation, an Illinois corporation. (xiviii) ~~Certified copies of each~~ A certified copy of the ~~Related Documents~~Stock Purchase Agreement, duly executed by the parties ~~thereto~~ thereto. (ix) A certificate of the Chief Financial Officer, Treasurer or Controller of the Borrower certifying that all commitments under the Existing Credit Agreement have been cancelled and ~~in form~~ all outstanding principal of and ~~substance satisfactory to~~ accrued interest on the ~~Lender Parties~~indebtedness outstanding thereunder, together with all ~~agreements, instruments~~ fees and other ~~documents delivered~~ amounts payable thereunder, have been paid in ~~connection therewith~~full or will be paid in full upon disbursement of the initial Advances hereunder. (~~xii~~x) ~~Such financial~~A favorable opinion of each of Will▇▇▇ ▇▇▇, ~~business~~ ▇▇q., Vice President and ~~other information regarding each Loan Party~~ General Counsel to the Borrower, Wayn▇ ▇▇▇▇▇▇, ▇▇rporate Counsel of the Company, and ~~its Subsidiaries as~~ Lath▇▇ & ▇atk▇▇▇, ▇▇unsel for the ~~Lender Parties shall have requested~~Borrower and the Guarantor Subsidiaries, ~~including~~in substantially the forms of Exhibits E-1, ~~without limitation~~E-2 and E-3 hereto, ~~information~~ respectively, and as to ~~possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and~~ such other arrangements with employees, audited annual financial statements of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated matters as any Lender Party through the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination DateAgent may reasonably request. (~~xiii~~xi) ~~Certificates~~A favorable opinion of Shearman & Sterling, counsel for the Agent, in substantially the form of Exhibit ~~G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer~~F hereto. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (Beckman Instruments Inc)

Conditions Precedent to Initial Extension of Credit. The obligation of ~~each~~ the 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 the Initial Extension of Credit: (a) The ~~Merger shall have been consummated substantially in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the~~ Lender ~~Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws. (b) The Merger Agreement~~ shall be ~~in full force and effect. (c) The Lender Parties shall be~~ reasonably satisfied with any changes made after December 31, 1997 to the corporate and legal structure and capitalization of ~~each Loan Party and each of its Subsidiaries~~the Borrower, including the terms and conditions of the ~~charter~~Borrower's ESCRITURA CONSTITUTIVA, ~~bylaws and~~ its bylaws, each class of capital stock of ~~each Loan Party~~ the Borrower, the Joint Venture Agreement and each ~~such Subsidiary and of each~~ other agreement or instrument relating to such structure or capitalization, in each case to the extent that the Lender determines such changes are adverse to the Lender or the Borrower. (db) The Lender ~~Parties~~ shall be satisfied that (i) all Existing ~~Debt~~Debt (including the Debt that the Borrower owes Citibank Mexico immediately before the Initial Extension of Credit), other than the Debt identified on Schedule ~~3.01(d~~3.01(b) (the "~~Surviving Debt~~SURVIVING DEBT"), has ~~been prepaid~~been, ~~redeemed~~ or ~~defeased in full~~ will with the proceeds of the Initial Extension of Credit be, prepaid or otherwise satisfied and extinguished, and (ii) all such Surviving Debt shall be on terms and conditions satisfactory to the Lender. (ec) ~~There~~ Before giving effect to the transactions contemplated by the Transaction Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of (i) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries, taken as a whole, Material Adverse Change since December 31, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 19951997. (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) ~~would~~ could reasonably be ~~reasonably likely~~ expected to have a Material Adverse Effect ~~other than the matters described on Schedule 3.01(f) (the "Disclosed Litigation")~~ or (ii) purports to affect the legality, validity or enforceability of the ~~Merger, this Agreement, any Note, any other Loan Document, any Related Document~~ Transaction Documents or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f)thereby. (ge) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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) All governmental and third party consents and approvals (including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes) necessary in connection with Loan Documents and the transactions contemplated thereby (including, without limitation, the Merger) shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liability; all applicable waiting periods 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 that restrains, prevents or imposes materially adverse conditions upon the Loan Documents or the transactions contemplated thereby (including, without limitation, the Merger). (j) The Borrowers Borrower shall have paid all documented accrued fees and expenses of the ~~Agent and the~~ Lender ~~Parties~~ (including the accrued fees and expenses of counsel to the ~~Agent and local counsel to the Lender Parties~~Lender). (kf) The ~~Agent~~ Lender shall have received on or before the day of the Initial Extension of Credit the ~~following~~following loan documentation, each dated such day (unless otherwise specified), in form and substance satisfactory to the ~~Agent (unless otherwise specified)~~ Lender and ~~(except for~~ in the ~~Notes) in sufficient~~ number of copies ~~for each Lender Party~~as requested by the Lender: (i) ~~The Notes payable to the order of the Lenders. (ii) Certified copies~~ Copies of the resolutions (or other authorizing actions or instruments) of the Board of Directors or the Shareholders of ~~each Borrower,~~ the Borrower and each other Loan Party approving ~~the Merger,~~ this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and each Related~~ 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 Merger,~~ this Agreement, the ~~Notes,~~ Notes and each other Loan ~~Document and~~ Document, in each ~~Related Document~~case certified by an Officers' Certificate of such Loan Party or by a notary public. (~~iii~~ii) A copy of ~~a certificate~~ the charter and bylaws of the ~~Secretary~~ Borrower and each amendment thereto, certified (as of ~~State of the jurisdiction of its incorporation, dated~~ a date reasonably near the date of the Initial Extension of Credit~~, listing~~ ) by the ~~charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's~~ appropriate Governmental Authority or such other Loan Party's charter on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State by a notary public of the jurisdiction of its incorporation. (iv) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Lender Parties of the consummation of the Merger. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower or such other Loan Party, incorporation as the case may be, 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 Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) being a true and correct copy of the bylaws of such Borrower or such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Borrower or such other Loan Party organized under the laws of the State of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Borrower or such other 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 Defaultthereof. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower or such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (Accuride Corp)

Conditions Precedent to Initial Extension of Credit. 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 the Initial Extension of Credit: (a) The ~~Merger~~ Acquisition shall have been consummated ~~substantially~~ in accordance with the terms of the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in material compliance with all applicable laws, except for such non-compliance with respect to liquor and operating licenses in respect of the Acquired Assets as could not reasonably be expected to have a Material Adverse Effect. The final terms and conditions of the Acquisition and the Buyback, including, without limitation, all legal and tax aspects thereof, shall be (i) in all material respects as described in the Information Memorandum and the information and materials delivered to the Lender Parties in connection therewith and (ii) otherwise satisfactory to the Lender Parties. (b~~) The Merger Agreement shall be in full force and effect. (c~~) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan ~~Party and each of its Subsidiaries~~Party, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and ~~each such Subsidiary and~~ of each agreement or instrument relating to such structure or capitalization, including each stockholders', voting trust or other similar agreement or instrument relating thereto. (dc) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt identified on Schedule ~~3.01(d~~3.01(c) (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and ~~extinguished~~extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties. (ed) ~~There~~ Before giving effect to the Acquisition and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of ~~(i) before and after giving effect to~~ the ~~Merger and the other transactions contemplated by this Agreement, Crompton Corp.~~ Borrower and its ~~Subsidiaries~~Subsidiary Parties, taken as a whole, or in the Acquired Assets since December 3128, 1995, (ii) after giving effect to the Merger and the other transactions contemplated by this Agreement, Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), taken as a whole, since December 31, 1995 or (iii) before and after giving effect to the Merger and the other transactions contemplated by this Agreement, Uniroyal and its Subsidiaries, taken as a whole, since September 30, 19951997. (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) ~~would~~ could reasonably be ~~reasonably likely~~ expected to have (both prior to and after giving effect to the Acquisition) a Material Adverse Effect ~~other than~~ or a material adverse effect on the ~~matters described on Schedule 3.01(f)~~ business, condition (financial or otherwise), operations, performance, properties or prospects of the ~~"Disclosed Litigation")~~ Acquired Assets taken as a whole or (ii) purports to adversely affect the legality, validity or enforceability of the ~~Merger~~Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material 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 3.01(f). (g) The Lender Parties shall have completed a due diligence investigation of the Borrowers 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 (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Merger, Crompton Corp. and its Subsidiaries would not have good and marketable title to all material assets of Uniroyal Corp. and its Subsidiaries reflected in the Information Memorandum and (iii) that the Merger 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 Borrowers and their respective Subsidiaries as they shall have requested. (h) All stock of the Borrowers (other than Crompton Corp.) and the Borrowers' Subsidiaries, to the extent owned by the Borrowers and their Subsidiaries, shall be owned by the Borrowers or one or more of the Borrowers' Subsidiaries, in each case free and clear of any lien, charge or encumbrance; the Agent shall have a valid and perfected first priority lien on and security interest in the Collateral (other than as to matters of perfection and priority of the security interest in the Pledged Accounts (as defined in the Uniroyal Security Agreement) and the Other Accounts (as defined in the Uniroyal Security Agreement)) for the benefit of the Secured Parties; 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. (if) All governmental and third party consents and approvals ~~(including, without limitation, any consents or approvals required under the documents relating to the Uniroyal Corp. Senior Notes and the Uniroyal Corp. Senior Subordinated Notes)~~ necessary in connection with ~~Loan Documents and~~ the transactions contemplated ~~thereby (including, without limitation,~~ hereby and the ~~Merger)~~ use of proceeds hereof shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the ~~Lender Parties~~Initial Lenders) and shall remain in effect other than such governmental or third party consents and approvals the failure to obtain which shall not (x) be materially adverse to any of the Borrowers, in each case together with its respective Subsidiaries, taken as a whole, (y) affect the enforceability, validity or binding effect of any of the Loan Documents required to be executed and delivered prior to or on the Effective Date or (z) expose the Agent or the Lender Parties to personal liabilityeffect; all applicable waiting periods shall have expired without any material adverse action being taken by any competent ~~authority; and no law or regulation shall be applicable in the judgment of the Lender Parties~~ authority that restrains, prevents or imposes materially adverse conditions upon the ~~Loan Documents~~ Acquisition, the Buyback or the transactions contemplated thereby ~~(including~~in the reasonable judgment of the Initial Lenders; and no law or regulation shall be applicable that restrains, ~~without limitation~~prevents or imposes materially adverse conditions upon the Acquisition, the ~~Merger).~~Buyback or the transactions contemplated hereby (jg) The ~~Borrowers~~ Borrower shall have paid all accrued fees and expenses of the Administrative Agent, the Collateral Agent, the Arranger, the Syndication Agent and the Lender Parties (including the accrued reasonable fees and expenses of counsel to the Administrative Agent, the Collateral Agent, the Arranger, the Syndication Agent and local counsel to the ~~Lender~~ Administrative Agent, the Collateral Agent, the Arranger and the Syndication Agent). (h) The Lenders shall be satisfied that (i) the Borrower and its Subsidiary Parties will be able to meet their obligations under all employee and retiree welfare plans, (ii) the employee benefit plans of the Borrower 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. (i) The Lenders shall be satisfied with the amount, types and terms and conditions of all insurance maintained by the Borrower and its Subsidiary Parties). (j) All accrued and unpaid Obligations of the Borrower in respect of that certain Note Purchase Agreement dated as of June 1, 1994 and the notes issued thereunder shall have been paid in full, and the Administrative Agent shall have received a letter of the note purchasers thereunder as to such payment, in form and substance reasonably satisfactory to the Administrative Agent. (k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent and the 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. (ii) Certified copies of the resolutions of the Board of Directors of ~~each Borrower,~~ the Borrower and each other Loan Party approving the ~~Merger~~Acquisition, the Buyback, this Agreement, the Notes, each other Loan Document and each Related 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 ~~Merger~~Acquisition, the Buyback, this Agreement, the Notes, each other Loan Document and each Related Document.. NYDOCS03/100354 ▇▇▇▇▇▇▇▇'▇ International Credit Agreement (iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of ~~each~~ the Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to ~~such~~ the Borrower's or such other Loan Party's charter on file in his office, (B) ~~each~~ the Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) ~~each~~ the Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation. (iv) ~~Certified copies of~~ Copies, certified by a ~~certificate of merger or other confirmation from the Secretary of State~~ Responsible Officer of the ~~State~~ Borrower as being true and complete, of ~~Delaware~~ (A) each Related Document, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties of and (B) each Stock Plan and the ~~consummation of the Merger.~~ Rights Agreement. , (v) A certificate of ~~each~~ the Borrower and each other Loan Party, signed on behalf of ~~such~~ the Borrower or and such other Loan ~~Party, as the case may be,~~ Party 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~~ the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of ~~such~~ the Borrower or and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of ~~such~~ the Borrower or and such other Loan Party as a corporation organized under the laws of the ~~State~~ its jurisdiction of ~~its~~ incorporation, and the absence of any proceeding for the dissolution or liquidation of ~~such~~ the Borrower or such other 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. (vi) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower or such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder. (vii) A security agreement in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Crompton Security Agreement"), duly executed by each Crompton Borrower and each Crompton 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 (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein indorsed in blank, (B) duly executed proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement, covering the Collateral described in the Crompton Security Agreement, (C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Crompton Borrower or any Crompton Guarantor 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 Crompton Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, and (E) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Crompton Security Agreement has been taken. (viii) A security agreement in substantially the form of Exhibit D-2 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Uniroyal Security Agreement" and, together with the Crompton Security Agreement and each security agreement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Uniroyal Borrower and each Uniroyal Guarantor, together with: (A) duly executed proper financing statements, to be filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement, covering the Collateral described in the Uniroyal Security Agreement, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Uniroyal Borrower or any Uniroyal Guarantor as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Uniroyal Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) evidence of the insurance required by the terms of the Security Agreement, (E) instruments evidencing the Pledged Debt (except as otherwise provided in Sections 5.02(b)(i)(D) and 5.02(b)(ii)) referred to therein endorsed in blank, and (F)evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Uniroyal Security Agreement has been taken. (ix) A guaranty in substantially the form of Exhibit E-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Crompton Corp. (x) A guaranty in substantially the form of Exhibit E-2 (together with each other guaranty delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (xi) 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. (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 of Crompton Corp. and its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries) dated December 30, 1995, audited annual financial statements of Uniroyal Corp. and its Subsidiaries dated October 1, 1995, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to Crompton Corp. and its Subsidiaries after giving effect to the Merger and the other transactions, on a Consolidated basis, of balance sheets, income statements and cash flow statements for the one-year period ended on or about March 31, 1996 and forecasts prepared by management of the Borrowers, in form and substance satisfactory to the Lender Parties, on a Consolidated basis and, to the extent otherwise available, on a Consolidating basis, of balance sheets, income statements and cash flow statements for the first year following January 1, 1996 and on an annual basis for each year thereafter until the Termination Date. (xiii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer. (xiv) A supplement to the Uniroyal Security Agreement in respect of Collateral located in the State of Louisiana in substantially the form of Exhibit D-3 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Louisiana Undertaking"), duly executed by the Uniroyal Borrower and the Uniroyal Guarantors. (xv) An environmental assessment report, in form and substance satisfactory to the Lender Parties, from Environmental Safety and Designs, Inc., 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 o

Appears in 1 contract

Sources: Credit Agreement (Applebees International Inc)

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