Conditions Precedent to the Effective Date. This Amended Agreement shall become effective on the first date (the "EFFECTIVE DATE") when all of the following conditions precedent set forth in this Section 4.01 have been satisfied: (a) The Agent shall have received all in form and substance reasonably satisfactory to the Agent and the Lenders (i) counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of a counterpart hereof by such Lender), (ii) counterparts of the Pledge Agreement and the USPI Pledge Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the counterpart thereof by such Lender), (iii) counterparts of the Subsidiaries Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the counterpart thereof by such Lender), (iv) counterparts of the Sponsor Guarantee Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the counterpart thereof by such Lender)
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Sources: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (United Surgical Partners International Inc)
Conditions Precedent to the Effective Date. This Amended Agreement shall become effective on the first date (the "EFFECTIVE DATE") when all of the following conditions precedent set forth in this Section 4.01 4.01, and the additional conditions precedent set forth in Section 4.02, have been satisfied:
(a) The Administrative Agent shall have received all in form and substance reasonably satisfactory to the Agent and the Lenders (i) counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of a counterpart hereof by such Lender), (ii) counterparts of the Pledge Agreement and the USPI Pledge Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the counterpart thereof by such Lender), (iii) counterparts of the Subsidiaries Borrower's Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of the counterpart thereof by such Lender), and (iviii) counterparts of the Sponsor Guarantee Subsidiary's Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of the counterpart thereof by such Lender).
(b) The Administrative Agent shall have received for the account of each Lender requesting the same a duly executed Note or Notes, dated the Effective Date, complying with the provisions of Section 2.
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Conditions Precedent to the Effective Date. This Amended Agreement shall become effective on the first date (the "EFFECTIVE DATEEffective Date") when all of the following conditions precedent set forth in this Section 4.01 4.01, and the additional conditions precedent set forth in Section 4.02, have been satisfied:
(a) The Administrative Agent shall have received all in form and substance reasonably satisfactory to the Agent and the Lenders (i) counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of a counterpart hereof by such Lender), (ii) counterparts of the Pledge Agreement and the USPI Pledge Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the counterpart thereof by such Lender), (iii) counterparts of the Subsidiaries Borrower's Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of the counterpart thereof by such Lender), and (iviii) counterparts of the Sponsor Guarantee Subsidiary's Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of the counterpart thereof by such Lender).
(b) The Administrative Agent shall have received for the account of each Lender requesting the same a duly executed Note or Notes, dated the Effective Date, complying with the provisions of Section 2.
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Conditions Precedent to the Effective Date. This Amended Agreement shall become effective on the first date (the "EFFECTIVE DATE") when all of the following conditions precedent set forth in this Section 4.01 4.01, and the additional conditions precedent set forth in Section 4.02, have been satisfied:
(a) The Agent Agents shall have received all in form and substance reasonably satisfactory to the Agent and the Lenders (i) counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent Agents of the execution of a counterpart hereof by such Lender), (ii) counterparts of the Pledge Agreement and the USPI Pledge Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the counterpart thereof by such Lender), (iii) counterparts of the Subsidiaries Borrower's Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent Agents of the execution of the counterpart thereof by such Lender), and (iviii) counterparts of the Sponsor Guarantee Subsidiary's Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent Agents of the execution of the counterpart thereof by such Lender).
(b) The Administrative Agent shall have received for the account of each Lender a duly executed Note or Notes, dated the Effective Date, complying with the provisions of Section 2.
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Conditions Precedent to the Effective Date. This Amended Agreement shall become effective on the first date (the "EFFECTIVE DATEEffective Date") when all of the following conditions precedent set forth in this Section 4.01 4.01, and the additional conditions precedent set forth in Section 4.02, have been satisfied:
(a) The Agent shall have received all in form and substance reasonably satisfactory to the Agent and the Lenders (i) counterparts hereof signed by each of the parties hereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telegraphic, telex, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of a counterpart hereof by such Lender), (ii) counterparts to the Parent's Consent, signed by each of the Pledge Agreement and parties thereto, (iii) counterparts to the USPI Pledge Agreement Borrower's Consent signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telegraphic, telex, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the a counterpart thereof hereof by such Lender), ) and (iiiiv) counterparts of to the Subsidiaries Subsidiaries' Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall 70 76 not have been received, telegraphic, telex, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the a counterpart thereof hereof by such Lender).
(b) The Agent shall have received, (ivi) counterparts for the account of each Lender, a duly executed Note or Notes (other than the Swingline Note), dated the Effective Date, complying with the provisions of Section 2.05 and (ii) for the account of the Sponsor Guarantee Swingline Lender, a duly executed Swingline Note, dated the Effective Date, complying with the provisions of Section 2.05. On the Effective Date, the Lenders under the Original Credit Agreement signed will return the Notes dated as of the Closing Date to the Borrower for cancellation, and such Notes will be replaced by the Notes dated the Effective Date and issued to the Lenders hereunder.
(c) The Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Collateral Document, perfected to the extent contemplated by Section 3.18 and the Agent shall have received:
(i) confirmation by the Borrower that the Agent has previously received certificates representing all Pledged Securities (as defined in the Security Agreement and Pledge Agreement), accompanied by stock powers endorsed in blank;
(ii) confirmation by the Borrower that no additional filing, registration or recordation of any document (including any Uniform Commercial Code financing statement) is required to be filed, registered or recorded in order to create in favor of the Agent for the benefit of the Secured Parties a valid, legal and perfected security interest in or Lien on the Collateral; and
(iii) searches of Uniform Commercial Code filings in the jurisdiction of the chief executive office of the Parent, the Borrower and each Subsidiary and each jurisdiction where any Collateral is located and where a filing was made in connection with the Original Credit Agreement and the Collateral Documents, confirming the perfected security interest in the Collateral in favor of the Agent for the benefit of the Secured Parties.
(d) The Agent shall have received an opinion of (i) each of the parties appropriate counsel to the Loan Parties necessary to give those opinions set forth in Exhibit M-1 hereto and (ii) Georgia counsel to the Borrower in the form of Exhibit M-2 hereto, dated the Effective Date and addressed to the Agent and the Lenders.
(e) The Agent shall have received:
(i) a certificate, dated the Effective Date and signed by a Financial Officer of each of the Borrower and the Domestic Subsidiaries confirming compliance with the conditions precedent set forth in paragraphs (h), (j) and (k) 71 77 of this Section 4.01 and in paragraphs (b), (c) and (d) of Section 4.02;
(ii) a copy of the long form certificate of incorporation or other constitutive documents, including all amendments thereto, of the Parent, the Borrower and the Domestic Subsidiaries, certified as of a recent date by the Secretary of State (or comparable authority) of the jurisdiction of its organization, and a certificate as to the good standing of each such party as of a recent date, from such Secretary of State (or other authority);
(iii) a certificate of the Secretary or Assistant Secretary of the Parent, the Borrower and the Domestic Subsidiaries dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or comparable governing instruments of such party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or comparable governing body of such party (or, in the case of any Lender partnership, of the general partner of such party) authorizing the execution, delivery and performance of this Amended Agreement, the Loan Documents to which such party is or will be a party, including without limitation, the Parent's Consent, the Subsidiaries' Consent and the Borrower's Consent, and in the case of the Borrower, the extensions of credit hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation or other constitutive documents of such party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (ii) above, and (D) as to which an executed counterpart shall not have been receivedthe incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such party; and
(iv) such other documents, telecopy or other written confirmation from such party opinions, certificates and agreements in connection with the Facilities, in form and substance satisfactory to the Agent, as it shall reasonably request.
(f) The Borrower shall have paid all Fees and other amounts due and payable to the Agent or any Lender on or prior to the Effective Date.
(g) [intentionally omitted.]
(h) No Material Adverse Change shall have occurred since March 31, 1997.
(i) [Intentionally omitted.]
(j) The Agent shall have received satisfactory evidence that the Borrower has obtained all governmental, shareholder and third party consents and approvals and expiration of all applicable waiting or appeal periods necessary or, in the opinion of the
(k) There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or other Governmental Authority that purports to adversely affect the Facilities or that could have a material adverse effect on the ability of the execution of Borrower and the counterpart thereof Subsidiaries to perform their obligations under the documents to be executed in connection with the Facilities, except as disclosed to and approved by such Lender)the Agent prior to the date hereof.
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Conditions Precedent to the Effective Date. This Amended Agreement shall become effective on the first date (the "EFFECTIVE DATE"“Effective Date”) when all of the following conditions precedent set forth in this Section 4.01 4.01, and the additional conditions precedent set forth in Section 4.02, have been satisfied:
(a) The Administrative Agent shall have received all in form and substance reasonably satisfactory to the Agent and the Lenders (i) counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of a counterpart hereof by such Lender), (ii) counterparts of the Pledge Agreement and the USPI Pledge Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of the counterpart thereof by such Lender), (iii) counterparts of the Subsidiaries Borrower’s Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of the counterpart thereof by such Lender), (iviii) counterparts of the Sponsor Guarantee Subsidiary’s Consent and Agreement signed by each of the parties thereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Administrative Agent of the execution of the counterpart thereof by such Lender), and (iv) counterparts of the Security Agreement and the Mortgages signed by each of the parties thereto.
(b) The Administrative Agent shall have received for the account of each Lender requesting the same a duly executed Note or Notes, dated the Effective Date, complying with the provisions of Section 2.05. On the Effective Date, the Lenders under the Existing Credit Agreement will return the notes issued pursuant to the Existing Credit Agreement to the Borrower for cancellation, and such Notes will be (to the extent new Notes are requested) replaced, as applicable, by the Notes dated the Effective Date and issued to the Lenders hereunder.
(c) The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in the Collateral Documents, perfected to the extent contemplated by Section 3.18 and the Administrative Agent shall have received:
(i) confirmation by the Borrower and the Collateral Agent that the Collateral Agent has previously received with respect to all Pledged Securities (as defined in the Pledge Agreement), Intercompany Notes or stock certificates (to the extent the same are certificated) accompanied by stock or note powers endorsed in blank or else has made arrangements satisfactory to the Administrative Agent for the delivery of same within, subject to Section 5.14 hereof, sixty days after the date hereof (and the Borrower agrees to cause all such deliveries, subject to Section 5.14, to be made within such time period);
(ii) confirmation by the Borrower that no additional filing, registration or recordation of any document (including any Uniform Commercial Code financing statement) is required to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected security interest in or Lien on the Collateral except for the recording of the Mortgages and filings (“Effective Date Filings”) disclosed to the Administrative Agent and as to which arrangements for filing satisfactory to the Administrative Agent have been made as of the Effective Date;
(iii) searches of Uniform Commercial Code filings in the jurisdiction of incorporation and the chief executive office of the Borrower and each Subsidiary and each jurisdiction where any Collateral is located and where a filing was made in connection with the Original Credit Agreement or the Existing Credit Agreement and the Collateral Documents, confirming (subject to the Effective Date Filings and to the extent filing is required) the perfected security interest in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties; and
(iv) title commitments in respect of the real property subject to the Mortgages issued by title insurance companies, and in form and substance, satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received (i) an opinion of T▇▇▇▇▇▇▇ H▇▇▇ LLP, counsel to the Borrower and the Subsidiaries and (ii) an opinion of Lexence N.V., counsel to the Subsidiary Borrower, in each case in form and substance satisfactory to the Administrative Agent, each dated the Effective Date and addressed to the Administrative Agent and the Lenders.
(e) The Administrative Agent shall have received:
(i) Copies of the certificate of incorporation of the Borrowers and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrowers and each Guarantor, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which such person is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrowers and each Guarantor, which shall identify by name and title and bear the signatures of the Responsible Officers and any other officers of the Borrowers and each Guarantor authorized to sign the Loan Documents to which the Borrowers or such Guarantor is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrowers or such Guarantor.
(iv) An Officer’s Certificate, dated the Effective Date and signed by a Responsible Officer of the Borrower confirming compliance with the conditions precedent set forth in subparagraphs (g), (h), (i) and (j) of this Section 4.01 and in subparagraphs (b), (c) and (d) of Section 4.02;
(v) such other documents, opinions, certificates and agreements in connection with the Revolving Credit Facility, in form and substance satisfactory to the Administrative Agent, as it shall reasonably request.
(f) The Borrower shall have paid all Fees and other amounts due and payable to the Administrative Agent or any Lender on or prior to the Effective Date, including, without limitation, all fees and other amounts accrued to the Effective Date to the Administrative Agent for the account of each Lender pursuant to Section 2.05 of the Existing Credit agreement.
(g) No Material Adverse Change shall have occurred (i) since August 31, 2005 or (ii) relative to the pro-forma financial statements in the Confidential Information Memorandum.
(h) The Administrative Agent shall have received evidence satisfactory to it that the Borrower and the Subsidiaries have obtained all governmental (whether domestic or foreign), shareholder and third party consents and approvals and expiration of all applicable waiting or appeal periods necessary or, in the opinion of the Administrative Agent, appropriate in connection with the Revolving Credit Facility and the pledge of the Collateral for the Revolving Credit Facility without any action being taken that could restrain, prevent or impose any material adverse condition on the Borrower, the Subsidiaries (or any of them) or the transactions contemplated hereby or that could seek or threaten any of the foregoing, and no law or regulation or condition shall be applicable which in the judgment of the Administrative Agent could have such effect.
(i) There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that purports to adversely affect the Revolving Credit Facility or that could have a Material Adverse Effect.
(j) None of the Borrower and the Subsidiaries shall be in violation of any law, rule or regulation, or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default could reasonably be expected to result in a Material Adverse Effect.
(k) The Borrower shall have repaid in full (or shall repay in full substantially contemporaneously with the initial extension of credit hereunder) all loans outstanding under the Existing Agreement together with all accrued interest and fees including Letter of Credit Fees) payable thereunder (whether or not due and owing).
(l) Each Lender which is not already a party to the Collateral Agency Agreement shall have executed a counterpart thereof and each Existing Lender which is
not a Lender hereunder shall have executed a consent hereto in form reasonably satisfactory to the Administrative Agent.
(m) The Administrative Agent shall have received the certificates of insurance relating to insurance that are required pursuant to Section 5.02 naming the Collateral Agent as an additional insured and loss payee.
(n) A Master Consent and Amendment amending the Collateral Agency Agreement and the Senior Note Purchase Agreement in form and substance satisfactory to the Administrative Agent shall have been executed and delivered by the requisite parties.
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