Conditions Precedent to the Initial. Advance and the Issuance of the Initial Letter of Credit. The obligation of each Lender to make the initial Advance under the Loans, or issue the initial Letter of Credit, is subject to receipt by the Administrative Agent of each of the following, in form and substance satisfactory to the Administrative Agent, with a copy (except for the Notes) for each Lender: (a) a loan certificate of the Borrower certifying as to the accuracy of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default has occurred under the terms of this Agreement, and including a certificate of incumbency with respect to each Authorized Officer, and containing a representation that the following items are attached thereto, and that each of such items remains unchanged and valid, except as shown on the attachments: (i) copies of the Articles of Incorporation of the Borrower and each of the Material Subsidiaries, certified to be true, complete and correct by the secretary of state of each such Person's respective state of incorporation, (ii) copies of the By-Laws of the Borrower and each of the Material Subsidiaries and (iii) copies of a certificate of good standing and a certificate of existence for the Borrower in Colorado and each of its Material Subsidiaries' state of incorporation, and other material states determined by the Borrower. (b) duly executed Notes by the Borrower, payable to the order of each Lender, one Revolver A Note in an amount for each Lender equal to its Revolver A Specified Percentage of the Revolver A Commitment on the Closing Date, one Working Line Loan Note in an amount for each Lender equal to its Working Line Loan Specified Percentage of the Working Line Commitment on the Closing Date, and one Revolver B Note in an amount for each Lender equal to its Revolver B Specified Percentage of the Revolver B Commitment on the Closing Date; (c) a loan certificate of the Borrower certifying that a copy of the resolutions of the Borrower and the Guarantor, authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them is a party is attached and is a true and accurate copy; (d) in form and substance acceptable to the Administrative Agent, duly executed and completed Conditional Early Release Unlimited Guaranty of the Obligations by the Guarantor; (e) copies of all executed Existing Financing Documentation, with a certificate attached thereto executed by an Authorized Officer of the Borrower certifying that the attached copies are true and accurate and have not been amended, waived or consented to except as set forth therein; (f) all other Loan Papers to be delivered on the Closing Date duly executed and completed, dated the Closing Date; (g) opinions addressed to Administrative Agent on behalf of the Lenders of (i) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) special FCC counsel and/or PUC counsel to the Borrower and the Restricted Subsidiaries, as applicable, in form reasonably acceptable to the Arranging Agents, and (iii) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, that the execution of this Agreement and the Loan Papers, the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) and the performance of all its obligations under the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu with the Existing Financing; (h) a duly completed Compliance Certificate evidencing no Default or Event of Default dated as of the Closing Date, and a pro forma compliance certificate dated the Closing Date demonstrating the Borrower's compliance with each of the financial covenants contained in Section 8.01 hereof through the Maturity Date, with supporting projections; (i) a certificate from the Borrower stating that there has been no material adverse change in the financial condition, business or operations of the Borrower and its Subsidiaries since December 31, 1998; (j) evidence reasonably satisfactory that the Borrower and each of its Material Subsidiaries has (i) undertaken such review and assessment of its business and operations as it deems appropriate with respect to Year 2000 Compliance, (ii) developed an appropriate plan and timeline 50 for addressing Year 2000 Compliance issues on a timely basis, and (iii) to date, implemented that plan substantially in accordance with that timetable; (k) repayment of all Debt for Borrowed Money owed by the Borrower and the Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule -------- 8.02 hereto or otherwise permitted under Section 8.02 hereof; ---- (l) (i) payment to the Administrative Agent, Arranging Agents and Lenders of all fees due and payable as required in accordance with the terms of any Fee Letter or other written agreement among the parties, and (ii) reimbursement of the reasonable costs, fees and expenses (including the reasonable fees and expenses of Special Counsel) incurred by the Administrative Agent in connection with the negotiation, preparation and execution of this Agreement, the other Loan Papers and the making of the initial Loans; and
Appears in 1 contract
Sources: Credit Agreement (Qwest Communications International Inc)
Conditions Precedent to the Initial. Advance and the Initial ----------------------------------------------------------- Issuance of the Initial Letter Letters of Credit. The obligation of each Lender to make any Advance ----------------------------- and the initial Advance under obligation of the Loans, or Issuing Bank to issue the initial Letter Letters of Credit, Credit is subject to (i) receipt by the Administrative Agent of each Lender of the followingfollowing items which are to be delivered, in form and substance satisfactory to the Administrative Agenteach Lender, with a copy (except for the NotesNotes and this Agreement) for each Lender, and (ii) satisfaction of the following conditions which are to be satisfied:
(a) a A loan certificate of the Borrower each Obligor certifying as to the accuracy of its representations and warranties in the Loan PapersDocuments, certifying that no Default or Event of Default has occurred under the terms of this Agreementoccurred, and including a certificate of incumbency with respect to each Authorized OfficerSignatory, and containing a representation that the following items are attached thereto, and that each of such items remains unchanged and valid, except as shown on the attachments: including (i) copies a copy of the Articles articles or certificate of Incorporation incorporation of the Borrower and each of the Material Subsidiariessuch Obligor, certified to be true, complete and correct by the secretary of state of each such Person's respective its state of incorporationorganization, and (ii) copies of the By-Laws of the Borrower and each of the Material Subsidiaries and (iii) copies a copy of a certificate of good standing and a certificate of existence for the Borrower in Colorado and each of its Material Subsidiaries' state of incorporationorganization and, and other material states determined by with respect to the Borrower., the States of Texas, California and New Jersey;
(b) a duly executed Notes by the Borrower, Facility A Note and Facility B Note payable to the order of each Lender, one Revolver A Note Lender and in an amount for each Lender equal to its Revolver A Specified Percentage of the Revolver A Commitment on the Closing Dateeach Commitment, one Working Line Loan Note in an amount for each Lender equal to its Working Line Loan Specified Percentage of the Working Line Commitment on the Closing Date, and one Revolver B Note in an amount for each Lender equal to its Revolver B Specified Percentage of the Revolver B Commitment on the Closing Daterespectively;
(c) a loan certificate of the Borrower certifying that a copy of the resolutions of the Borrower and the Guarantor, authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them UCC searches in appropriate jurisdictions where Collateral is a party is attached and is a true and accurate copylocated;
(d) opinions of counsel to each Obligor addressed to the Lenders and in form and substance acceptable satisfactory to the Administrative AgentLenders, duly executed dated the Agreement Date, and completed Conditional Early Release Unlimited Guaranty covering certain of the Obligations by matters set forth in Sections 4.1(a), (b), (c), (e), --------------- --- --- --- (f), (h), (m), (n), (o) and (p) and such other matters incident to the Guarantor--- --- --- --- --- --- transactions contemplated hereby as the Administrative Lender or Special Counsel may reasonably request;
(e) copies of all executed Existing Financing Documentationreimbursement for the Administrative Lender for Special Counsel's reasonable and customary fees (on an hourly basis) and expenses rendered through the date hereof, with a certificate attached thereto executed by an Authorized Officer of to the Borrower certifying that the attached copies are true and accurate and have not been amended, waived or consented to except as set forth thereinextent invoiced;
(f) evidence that all proceedings of each Obligor taken in connection with the transactions contemplated by this Agreement and the other Loan Papers Documents shall be reasonably satisfactory in form and substance to be delivered on the Closing Date duly executed Lenders and completedSpecial Counsel; and the Lenders shall have received copies of all documents or other evidence which the Administrative Lender, dated the Closing DateSpecial Counsel or any Lender may reasonably request in connection with such transactions;
(g) opinions addressed any fees or expenses required to Administrative Agent be paid on behalf of or before the Lenders of (i) corporate counsel Agreement Date pursuant to the Borrower and each Restricted Subsidiary, to Administrative Lender Fee Letter and/or the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) special FCC counsel and/or PUC counsel to the Borrower and the Restricted Subsidiaries, as applicable, in form reasonably acceptable to the Arranging Agents, and (iii) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, that the execution of this Agreement and the Loan Papers, the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) and the performance of all its obligations under the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu with the Existing FinancingUpfront Fee Letter;
(h) a duly executed and completed Compliance Certificate evidencing no Default or Event of Default Security Agreements, dated as of the Closing Agreement Date, granting a Lien, in all Collateral covered thereby, together with related financing statements, the CFI Note and the ClientLink Note duly endorsed, and insurance certificates listing Administrative Lender as loss payee and additional insured and otherwise in a pro forma compliance certificate dated form required by the Closing Date demonstrating the Borrower's compliance with each of the financial covenants contained in Section 8.01 hereof through the Maturity Date, with supporting projectionsCollateral Documents;
(i) the duly executed Swing Line Note payable to the order of the Swing Line Bank in the aggregate principal amount of $5,000,000;
(j) a certificate from duly executed completed Pledge Agreement, dated as of the Agreement Date, granting a Lien in all Collateral covered thereby, together with related financing statements, stock powers and stock certificates evidencing ownership of CFI;
(k) simultaneously with the making of the initial Advance, executed UCC-3 Termination Statements to be filed in appropriate jurisdictions to terminate all Liens against assets of the Borrower stating that and its Subsidiaries other than Permitted Liens;
(l) all Securitization Documents, which shall be on terms and conditions acceptable to the Administrative Lender, including any amendments and modifications thereto as the Administrative Lender determines are necessary as a result of the transactions contemplated by this Agreement and the other Loan Documents;
(m) there has been shall have occurred no material adverse change in the business, assets or financial condition, business or operations condition of the Borrower and its Subsidiaries since December 31, 1998;
(j) evidence reasonably satisfactory that the Borrower and each of its Material Subsidiaries has (i) undertaken such review and assessment of its business and operations as it deems appropriate with respect to Year 2000 Compliance, (ii) developed an appropriate plan and timeline 50 for addressing Year 2000 Compliance issues on a timely basis, and (iii) to date, implemented that plan substantially in accordance with that timetable;
(k) repayment of all Debt for Borrowed Money owed by the Borrower and the Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule -------- 8.02 hereto or otherwise permitted under Section 8.02 hereof; ---- (l)
(i) payment to taken as a whole, since the Administrative Agent, Arranging Agents and Lenders of all fees due and payable as required in accordance with the terms of any Fee Letter or other written agreement among the parties, and (ii) reimbursement date of the reasonable costs, fees and expenses (including the reasonable fees and expenses of Special Counsel) incurred by the Administrative Agent financial statements referred to in connection with the negotiation, preparation and execution of this Agreement, the other Loan Papers and the making of the initial Loans; andSection ------- 4.1
Appears in 1 contract
Conditions Precedent to the Initial. Advance and the Issuance of the Initial Letter of Credit. The obligation of each Lender to make the initial Advance under the LoansRevolving Loan, or issue the initial Letter of Credit, is subject to receipt by the Administrative Agent Lender of each of the following, in form and substance satisfactory to the Administrative AgentLender, with a copy (except for the Notes) for each Lender:
(a) a A loan certificate of the Borrower certifying as to the accuracy of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default (as defined in the Original Credit Agreement) has occurred under the terms of Original Credit Agreement and/or under this Agreement, and including a certificate of incumbency with respect to each Authorized Officer, and containing including a representation that the following items delivered in connection with the Original Credit Agreement are attached thereto, and that each of such items remains unchanged and remain valid, except as shown on the attachments: (i) copies of the Articles of Incorporation of the Parent, the Borrower and each of the Material its Subsidiaries, which were certified to be true, complete and correct by the secretary of state of each such Person's respective state of incorporation, (ii) copies of the By-Laws of the Parent, the Borrower and each of its Subsidiaries, (iii) copies of certain contracts identified to the Material Subsidiaries Administrative Lender, each certified to be true, complete and correct by an Authorized Officer, and (iiiv) copies of a certificate of good standing and a certificate of existence for the Parent, the Borrower in Colorado and each of its Material Subsidiaries' Subsidiaries state of incorporationincorporation and the States of Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, North Carolina and other material states determined by the Borrower.South Carolina, as applicable;
(b) duly executed Notes by the BorrowerNotes, payable to the order of each Lender, one Revolver A Note in an amount for each Lender equal to its Revolver A Specified Percentage of the Revolver A Commitment on the Closing Date, one Working Line Loan Note in an amount for each Lender equal to its Working Line Loan Specified Percentage of the Working Line Commitment on the Closing Date, and one Revolver B Note in an amount for each Lender equal to its Revolver B Specified Percentage of the Revolver B Commitment on the Closing DateCommitment;
(c) a loan certificate of the Borrower certifying that a copy of the resolutions of the Parent, the Borrower and the Guarantor, each of its Subsidiaries authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them is a party is attached and is a true and accurate copy;
(d) duly executed and completed affirmations, in form and substance acceptable to the Administrative AgentLender of: (i) pledge agreement by Parent, duly executed and completed Conditional Early Release the Borrower and, to the extent applicable, each Subsidiary of the Borrower, (ii) Unlimited Guaranty of the Obligations by the GuarantorParent and each of the Subsidiaries of the Borrower and (iii) all security agreements, mortgages, deeds of trust, assignment agreements, and other collateral agreements by the Parent, the Borrower and any Subsidiary of the Borrower, executed in connection with the Original Credit Agreement;
(e) copies of all executed Existing Financing Documentation, with a certificate attached thereto executed by an Authorized Officer of the Borrower certifying that the attached copies are true and accurate and have not been amended, waived or consented to except as set forth therein;
(f) all other Loan Papers to be delivered on the Closing Effective Date duly executed and completed, dated after the Closing Date but on or before the Effective Date;
(f) opinions addressed to Administrative Lender on behalf of the Lenders of corporate counsel to the Parent, the Borrower and each Subsidiary of the Borrower, addressed to the Administrative Lender on behalf of the Lenders and in form and substance satisfactory to the Lenders, dated after the Closing Date but on or before the Effective Date;
(g) opinions addressed to reimbursement for Administrative Agent on behalf Lender of its reasonable fees and expenses and for Special Counsel's reasonable fees and expenses rendered through the Effective Date;
(h) evidence that all corporate proceedings of the Lenders of (i) corporate counsel to Parent, the Borrower and each Restricted Subsidiary, to the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) special FCC counsel and/or PUC counsel to Subsidiary of the Borrower and taken in connection with the Restricted Subsidiaries, as applicable, in form reasonably acceptable to the Arranging Agents, and (iii) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, that the execution of transactions contemplated by this Agreement and the other Loan Papers, shall be reasonably satisfactory in form and substance to the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) Lenders and Special Counsel; and the performance Lenders shall have received copies of all its obligations under documents or other evidence which the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu Administrative Lender, Special Counsel or any Lender may reasonably request in connection with the Existing Financingsuch transactions;
(hi) a duly completed Compliance Certificate evidencing no Default or Event of Default dated as of the Closing Effective Date, and a pro forma compliance certificate dated the Closing Date demonstrating the Borrower's compliance with each of the financial covenants contained in Section 8.01 hereof through the Maturity Date, with supporting projections;
(i) a certificate from the Borrower stating that there has been no material adverse change in the financial condition, business or operations of the Borrower and its Subsidiaries since December 31, 1998;
(j) evidence reasonably satisfactory that The 1998 Senior Notes shall have been issued by the Parent in form and substance acceptable to the Administrative Lender, and cash proceeds of not less than $95,000,000 shall have been received by the Parent. The Borrower and each shall have received an equity contribution from the Parent in an amount not less than the greater of its Material Subsidiaries has (i) undertaken such review the net proceeds of the 1998 Senior notes issuance and assessment of its business and operations as it deems appropriate with respect to Year 2000 Compliance, (ii) developed an appropriate plan and timeline 50 for addressing Year 2000 Compliance issues on a timely basis, and (iii) to date, implemented that plan substantially in accordance with that timetable;$95,000,000.; and
(k) repayment of all Debt for Borrowed Money owed by the Borrower in form and the Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule -------- 8.02 hereto or otherwise permitted under Section 8.02 hereof; ---- (l)
(i) payment substance satisfactory to the Administrative Agent, Arranging Agents Lenders and Lenders of all fees due and payable as required in accordance with the terms of any Fee Letter or other written agreement among the parties, and (ii) reimbursement of the reasonable costs, fees and expenses (including the reasonable fees and expenses of Special Counsel) incurred by , such other documents, instruments and certificates as the Administrative Agent Lender or any Lender may reasonably require in connection with the negotiationtransactions contemplated hereby, preparation and execution including without limitation the status, organization or authority of this Agreementthe Parent, the other Loan Papers Borrower or any Subsidiary of the Borrower, and the making enforceability of and security for the initial Loans; andObligations.
Appears in 1 contract
Sources: Credit Agreement (Itc Deltacom Inc)
Conditions Precedent to the Initial. Advance Advances and the Issuance of the Initial Letter -------------------------------------------------------------------------------- Letters of Credit. -------------------- The obligation of each Lender to make its initial Advance(s) (and, if applicable, participate in the initial Advance under Existing Letters of Credit) and the Loans, or obligation of the Issuing Bank to issue the initial Letter of Credit, Credit is subject to (i) receipt by the Administrative Agent of each of the followingfollowing items which are to be delivered, in form and substance reasonably satisfactory to the Administrative Agenteach Lender, with a copy (except for the NotesNotes and this Agreement) for each Lender, and (ii) satisfaction of the following conditions which are to be satisfied:
(a) a A loan certificate of each Obligor required by the Borrower Administrative Agent to be delivered certifying as to the accuracy of its representations and warranties in the Loan PapersDocuments, certifying certifying, in the case of any such Obligor, that no Default or Event of Default has occurred under the terms of this Agreementoccurred, and including a certificate of incumbency with respect to each Authorized OfficerSignatory, and containing a representation that the following items are attached thereto, and that each of such items remains unchanged and valid, except as shown on the attachments: including (i) copies a copy of the Articles articles or certificate of Incorporation incorporation or other organizational documents of the Borrower and each of the Material Subsidiariessuch Obligor, certified to be true, complete and correct by the secretary of state of each such Person's respective its state of incorporationorganization, (ii) copies of the By-Laws of the Borrower and each of the Material Subsidiaries and (iii) copies a copy of a certificate of good standing and a certificate of existence for its state of organization and in the Borrower case of any such Obligor, each state in Colorado and each which the nature of its Material Subsidiaries' state business requires it to be qualified to do business, (iii) a copy of incorporationsuch Obligor's bylaws, partnership agreement or similar document, certified to be true, complete and correct by its secretary or general partner, as the case may be, and other material states determined (iv) a copy of corporate or similar resolutions authorizing the execution, delivery and performance of the Loan Documents to be executed by the Borrower.such Obligor;
(b) a certificate of incumbency with respect to each Authorized Signatory of each Obligor not required to be delivered pursuant to clause (a) immediately above, together with a copy of corporate or similar resolutions authorizing the execution, delivery and performance of the Loan Documents to be executed by such Obligor;
(c) a duly executed Notes by the BorrowerRevolving Credit Note, Facility A Term Loan Note and Facility B Term Loan Note, payable to the order of each Lender, one Revolver A Note Lender with a related Commitment and in an amount for each Lender equal to its Revolver A Specified Percentage of the Revolver A Commitment on the Closing Dateeach such Commitment, one Working Line Loan Note in an amount for each Lender equal to its Working Line Loan Specified Percentage of the Working Line Commitment on the Closing Daterespectively, and one Revolver B Note in an amount for each Lender equal to its Revolver B Specified Percentage of the Revolver B Commitment on the Closing Date;
(c) a loan certificate of the Borrower certifying that a copy of the resolutions of the Borrower and the Guarantor, authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them is a party is attached and is a true and accurate copyhas specifically requested such Note;
(d) opinions of counsel to each Obligor addressed to the Lenders and in form and substance acceptable reasonably satisfactory to the Administrative AgentAgent and Special Counsel, duly executed dated the Agreement Date, and completed Conditional Early Release Unlimited Guaranty covering certain of the Obligations by matters set forth in Sections 4.1(a), (b), (c), (h), (m), (n) and (p) and such other matters incident to the Guarantortransactions contemplated hereby as the Administrative Agent or Special Counsel may reasonably request;
(e) copies of all executed Existing Financing Documentation, with a certificate attached thereto executed by reimbursement for the Administrative Agent for Special Counsel's reasonable and customary fees (on an Authorized Officer of hourly basis) and expenses rendered through the Borrower certifying that the attached copies are true and accurate and have not been amended, waived or consented to except as set forth thereinAgreement Date;
(f) evidence that all proceedings of each Obligor taken in connection with the transactions contemplated by this Agreement and the other Loan Papers Documents shall be reasonably satisfactory in form and substance to be delivered on the Closing Date duly executed Administrative Agent and completed, dated Special Counsel; and the Closing DateAdministrative Agent shall have received copies of all documents or other evidence which the Administrative Agent or Special Counsel may reasonably request in connection with such transactions;
(g) opinions addressed any fees or any expenses required to be paid pursuant to Section 2.4(b) hereof, the Administrative Agent on behalf of the Lenders of (i) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) special FCC counsel and/or PUC counsel to the Borrower Fee Letter and the Restricted Subsidiaries, as applicable, in form reasonably acceptable to the Arranging Agents, and (iii) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, that the execution of this Agreement and the Loan Papers, the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) and the performance of all its obligations under the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu with the Existing FinancingArrangement Fee Letter;
(h) a duly completed Compliance Certificate evidencing no Default or Event of Default dated as simultaneously with the making of the Closing Dateinitial Advances, and a pro forma compliance certificate dated the Closing Date demonstrating the Borrower's compliance with each of the financial covenants contained executed UCC-3 Termination Statements to be filed in Section 8.01 hereof through the Maturity Date, with supporting projections;
(i) a certificate from the Borrower stating that there has been no material adverse change in the financial condition, business or operations appropriate jurisdictions to terminate all Liens against assets of the Borrower and its Subsidiaries since December 31, 1998other than Permitted Liens (or written agreements from each holder of such Liens to promptly execute such Termination Statements);
(i) all Indebtedness of the Borrower and its Subsidiaries not otherwise permitted pursuant to Sections 7.1 and 7.2 hereof shall have been (or shall be simultaneously with the initial Advances hereunder) refinanced or repaid in full and all obligations of the Borrower and its Subsidiaries under such Indebtedness shall terminate;
(j) evidence reasonably satisfactory that the duly executed Subsidiary Guaranty executed by all Guarantors (which shall be all Subsidiaries of the Borrower and each of its Material Subsidiaries has (i) undertaken such review and assessment of its business and operations as it deems appropriate with respect to Year 2000 Compliance, (ii) developed an appropriate plan and timeline 50 for addressing Year 2000 Compliance issues on a timely basis, and (iii) to date, implemented that plan substantially in accordance with that timetablewhich are not Non-Guarantors);
(k) repayment the Schedule of Non-Guarantors in the form of Schedule 1.1(e) hereto;
(l) duly executed Pledge Agreements, granting a first priority perfected Lien in all Debt for Borrowed Money owed Collateral covered thereby, together with related financing statements, stock powers and stock certificates evidencing ownership of (i) 100% of the issued and outstanding Capital Stock of each such Domestic Subsidiary and (ii) 65% of the issued and outstanding Capital Stock of each such Foreign Subsidiary which has the Borrower or a Domestic Subsidiary as its direct parent;
(m) this Agreement duly executed by the Borrower and each Lender as of the Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule -------- 8.02 hereto or otherwise permitted under Section 8.02 hereofAgreement Date; ---- (l)and
(in) payment in form and substance reasonably satisfactory to the Administrative Agent, Arranging Agents Agent and Lenders of all fees due and payable as required in accordance with the terms of any Fee Letter or other written agreement among the parties, and (ii) reimbursement of the reasonable costs, fees and expenses (including the reasonable fees and expenses of Special Counsel) incurred by , such other documents, instruments and certificates as the Administrative Agent or any Lender may reasonably require in connection with the negotiation, preparation and execution of this Agreement, the other Loan Papers and the making of the initial Loans; andtransactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Clubcorp Inc)
Conditions Precedent to the Initial. Advance and the Issuance of the Initial Letter of Credit. The obligation of each Lender to make the initial Advance under the LoansLoan, or issue the initial Letter of Credit, (whichever shall occur first) is subject to receipt by the Administrative Agent of each of the following, in form and substance satisfactory to the Administrative Agent, with a copy (except for the Notes) for each Lender:
(a) a loan certificate of the each Borrower certifying as to the accuracy of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default has occurred under the terms of this Agreement, and including a certificate of incumbency with respect to each Authorized Officer, and containing a representation that the following items are attached thereto, and that each of such items remains unchanged and valid, except as shown on the attachments: (i) copies of the Articles of Incorporation or Memorandum of Association of each Borrower, each United States Subsidiary, and certain of the Borrower Subsidiaries located in the United Kingdom, Germany, Japan, Australia and each of the Material SubsidiariesNew Zealand, certified to be true, complete and correct by the secretary of state of each such Person's respective state or country of incorporationorganization as described on Schedule 5.01, (ii) copies of the By-Laws (or bye-laws) of the each Borrower and ------------- each of the Material Subsidiaries referenced in (i) above and (iii) copies of a certificate of good standing and a certificate of existence for the Borrower in Colorado Borrowers and each Subsidiary referenced in (i) above in their state or country of its Material Subsidiaries' organization and each other state of incorporation, and other material states determined by the Borrower.or country in which they are required to be authorized to do business;
(b) duly executed Notes by the each Borrower, payable to the order of each Lender, one Revolver A Note in an amount for each Lender equal to its Applicable Revolver A Specified Percentage of the Revolver A Commitment on the Closing Date, one Working Line Loan Note in an amount for each Lender equal to its Working Line Loan Specified Percentage of the Working Line Commitment on the Closing Date, and one Revolver B Note in an amount for each Lender equal to its Revolver B Specified Percentage of the Revolver B Commitment Commitments on the Closing Date;
(c) a loan certificate of the each Borrower certifying that a copy of the resolutions of the such Borrower and each of the Guarantor, Subsidiaries authorizing them such entity to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them such entity is a party is attached and is a true and accurate copy;
(d) in form and substance acceptable to the Administrative Agent, duly executed and completed Conditional Early Release Unlimited Guaranty of the Obligations by each of the GuarantorGuarantors;
(e) copies of all in form and substance acceptable to the Administrative Agent, a duly executed Existing Financing Documentation, with a certificate attached thereto executed and completed pledge agreement or share charge by an Authorized Officer the Domestic Borrower pledging or charging 66% of the Capital Stock of the Foreign Borrower certifying that to secure the attached copies are true and accurate and have not been amended, waived or consented to except as set forth thereinDomestic Revolver Loan;
(f) in form and substance acceptable to the Administrative Agent, a duly executed and completed pledge agreement by the Domestic Borrower pledging 100% of the Capital Stock of the Domestic DB Subsidiaries of the Domestic Borrower to secure the Domestic Revolver Loan;
(g) in form and substance acceptable to the Administrative Agent, a duly executed and completed pledge agreement or share charge by the applicable Obligor pledging or charging 100% of the Capital Stock of the FB Subsidiaries owned by such Obligor and 100% of the Capital Stock of the Foreign DB Subsidiary owned by such Obligor to secure the Foreign Revolver Loan;
(h) original stock or membership certificates, as applicable, constituting the pledged Capital Stock of the Subsidiaries as described in (e), (f) and (g) above, together with stock powers executed in blank and UCC filings requested by the Administrative Agent;
(i) in form and substance acceptable to the Administrative Agent, a duly executed and completed security agreement and U.C.C. financing statements by the Domestic Borrower and each of the Domestic DB Subsidiaries of the Domestic Borrower pledging the tangible and intangible assets of such entities to secure the Domestic Revolver Loan;
(j) in form and substance acceptable to the Administrative Agent, a duly executed and completed security agreement and U.C.C. financing statements by the Domestic Borrower, Foreign Borrower and each Approved Subsidiary pledging the tangible and intangible assets of such entities to secure the Foreign Revolver Loan;
(k) Unlimited Guarantys executed by each of the Guarantors as set forth in Section 2.16 hereof;
(l) payment in full by the Borrowers to the Administrative Agent in immediately available funds of the fees which are then due, as described in the Fee Letter;
(m) all other Loan Papers to be delivered on the Closing Date duly executed and completed, dated the Closing Date;
(gn) opinions addressed to Administrative Agent on behalf of the Lenders of (i) corporate counsel to the Borrower Borrowers, each Domestic DB Subsidiary and each Restricted Subsidiaryforeign counsel for certain Subsidiaries located in the United Kingdom, to the extent applicableGermany, Japan, Australia and New Zealand as described on Schedule 1.02 with respect to ------------- organizational matters, due authorization, execution, etc., no violation of law or material agreement, and the validity and enforceability under New York law and (ii) special FCC counsel and/or PUC counsel to the Borrower Borrowers and the Restricted Subsidiaries, as applicable, with respect to the Licenses of the Borrowers and the Subsidiaries and the transactions contemplated hereby, each in form reasonably and substance acceptable to the Arranging Agents, Administrative Agent;
(o) assignability of the MFN and the ▇▇▇▇▇▇▇▇ cable IRU contracts on conditions satisfactory to the Administrative Agent;
(iiip) corporate opinion of counsel to Borrowers in a form acceptable to Administrative Agent confirming Borrowers' and their applicable Subsidiaries' ability to transfer to a third party cable rights held by Borrowers and their Subsidiaries without the Borrower consent of any consortium group member as a result of the sale of 100% of the Capital Stock of the entities holding any cable rights;
(q) in form and substance acceptable to Administrative Agent, written agreements from identified cable consortiums to provide Administrative Agent written notice of any default or event of default with respect to cable contracts together with an opportunity to cure any such default or event of default;
(r) reimbursement for Administrative Agent with respect to its reasonable fees and expenses and for Special Counsel's reasonable fees and expenses rendered through the Closing Date;
(s) evidence that all corporate proceedings of the Borrowers and each Restricted Subsidiary, to of their Subsidiaries has taken place in connection with the extent applicable, that the execution of transactions contemplated by this Agreement and the other Loan Papers, shall be reasonably satisfactory in form and substance to the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) Lenders and Special Counsel; and the performance Lenders shall have received copies of all its obligations under documents or other evidence which the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu Administrative Agent, Special Counsel or any Lender may reasonably request in connection with the Existing Financingsuch transactions;
(ht) copies of all UCC searches of all Properties of the Borrowers and the domestic Subsidiaries showing no Liens except Permitted Liens and Liens permitted under Section 8.03(b) hereof and similar evidence for lack of Liens on property of each of the foreign Subsidiaries in the United Kingdom, Germany, Japan, Australia and New Zealand;
(u) a duly completed Compliance Certificate evidencing no Default or Event of Default dated as of the Closing Date, and a pro forma compliance certificate dated Date for the Closing Date demonstrating the Borrower's compliance with each of the financial covenants contained in Section 8.01 hereof through the Maturity Date, with supporting projectionsmost recently ended fiscal quarter;
(iv) a certificate from the Borrower Borrowers stating that there has been no material adverse change Material Adverse Change in the financial condition, business business, operations, or operations prospects of the Borrower Borrowers and its their Subsidiaries since December 31, 19981998 other than as disclosed through SEC filings;
(jw) evidence reasonably satisfactory that the Borrower Borrowers and each of its Material their Subsidiaries has (i) undertaken such a detailed review and assessment of all areas within its business and operations as it deems appropriate with respect to that could be adversely affected by the "Year 2000 ComplianceProblem" (that is, the risk that computer applications used by the Borrowers and their Subsidiaries may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date after December 31, 1999), (ii) developed an appropriate a detailed plan and timeline 50 for addressing the Year 2000 Compliance issues Problem on a timely basis, and (iii) to date, implemented that plan substantially in accordance with that timetable;, (iv) reasonably anticipated that all computer applications that are material to their business and operations will on a timely basis be able to perform properly date-sensitive functions and (v) made an inquiry of each of their key suppliers, vendors and customers as to whether such Persons will on a timely basis be Year 2000 compliant in all material respects and, on the basis of that inquiry, believe that all such Persons will be so compliant; and
(kx) repayment of all Debt for Borrowed Money owed by the Borrower in form and the Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule -------- 8.02 hereto or otherwise permitted under Section 8.02 hereof; ---- (l)
(i) payment substance satisfactory to the Administrative Agent, Arranging Agents Lenders and Lenders of all fees due and payable as required in accordance with the terms of any Fee Letter or other written agreement among the parties, and (ii) reimbursement of the reasonable costs, fees and expenses (including the reasonable fees and expenses of Special Counsel) incurred by , such other documents, instruments and certificates as the Administrative Agent or any Lender may reasonably require in connection with the negotiationtransactions contemplated hereby, preparation and execution including without limitation the status, organization or authority of this Agreement, the other Loan Papers Borrowers or any Subsidiary and the making enforceability of and security for the initial Loans; andObligations.
Appears in 1 contract
Conditions Precedent to the Initial. Advance to, and Letters of Credit on behalf of, the Issuance of the Initial Letter of CreditBorrower. The obligation of each Lender to make the initial Advance under to the LoansBorrower, or and the obligation of the Issuing Bank to issue the initial Letter of CreditCredit on behalf of, the Borrower is subject to receipt by the Administrative Agent Lender of each of the following, in form and substance satisfactory to the Administrative AgentLender, with a copy (except for the Notes) for each Lender:
(a) a loan certificate of the Borrower certifying as to the accuracy incumbency of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default has occurred under the terms of this Agreementeach Authorized Signatory, and including a certificate of incumbency with respect to each Authorized Officer, and containing a representation that the following items are attached thereto, and that each of such items remains unchanged and valid, except as shown on the attachments: (i) copies a copy of the Articles of Incorporation of the Borrower and each of the Material SubsidiariesBorrower, certified to be true, complete and correct by the secretary of state of each such Person's respective its state of incorporation, (ii) copies a copy of the By-Laws of the Borrower and each of Borrower, as in effect on the Material Subsidiaries and Agreement Date, (iii) copies a copy of the resolutions of the Borrower authorizing it to execute, deliver and perform this Agreement, the Notes, and the other Loan Documents to which it is a party, and (iv) a copy of a certificate of good standing and a certificate of existence existence, as applicable, for its state of incorporation and a certificate of authority to do business for each state in which it is qualified to do business;
(b) for each Subsidiary, a certificate of an officer acceptable to the Borrower in Colorado Lenders of each such Subsidiary, certifying as to the incumbency of the officers signing the Loan Documents to which it is a party, and each including (i) a copy of its Material Subsidiaries' Articles of Incorporation, certified as true, complete and correct by the secretary of state of its state of incorporation, (ii) a copy of its By-Laws, as in effect on the Agreement Date, (iii) a copy of the resolutions authorizing it to execute, deliver and other material states determined by perform the Borrower.Loan Documents to which it is a party, and (iv) a copy of a certificate of good standing and a certificate of existence, as applicable, for its state of incorporation and certificate of authority to do business in each state in which it is qualified to do business;
(bc) duly executed Notes by the BorrowerNotes, payable to the order of each Lender, one Revolver A Note Lender and in an amount for each Lender equal to its Revolver A Specified Percentage of the Revolver A Commitment on the Closing Date, one Working Line Loan Note in an amount for each Lender equal to its Working Line Loan Specified Percentage of the Working Line Commitment on the Closing Date, and one Revolver B Note in an amount for each Lender equal to its Revolver B Specified Percentage of the Revolver B Commitment on the Closing DateCommitment;
(cd) a loan certificate Borrower Pledge Agreement, duly executed and completed by the Borrower, dated as of the Agreement Date, granting the Lenders a first priority Lien and security interest in (i) the Pledged Stock owned directly by the Borrower (together with related, blank, undated stock powers) and (ii) Intercompany Notes evidencing intercompany advances made, or to be made, by the Borrower to Subsidiaries, together with related UCC-1 financing statements;
(e) duly executed and completed Subsidiary Pledge Agreements, dated as of the Agreement Date, granting the Lenders a first priority Lien and security interest in the (i) Pledged Stock owned directly by each Subsidiary (together with related, blank, undated stock powers), and (ii) Intercompany Notes evidencing intercompany advances made, or to be made, each Subsidiary to other Subsidiaries, together with related UCC-1 financing statements;
(f) a duly executed and completed Borrower Security Agreement, dated as of the Agreement Date, granting the Lenders a first priority Lien and security interest in (i) the Accounts of the Borrower certifying that a copy and (ii) the tangible personal property of the resolutions Borrower, together with related UCC-1 financing statements;
(g) a duly executed and completed Subsidiary Security Agreement, dated as of the Agreement Date, granting the Lenders a first priority Lien and security interest in (i) the Accounts of each Subsidiary and (ii) the tangible personal property of each Subsidiary, together with related UCC-1 financing statements;
(h) the Pledged Stock, together with stock powers duly executed in blank;
(i) the Intercompany Notes, duly endorsed;
(j) a duly executed and completed Subsidiary Guaranty, dated as of the Agreement Date executed by each Subsidiary;
(k) the Borrower shall have received Net Cash Proceeds of at least $40,000,000 from an initial public offering of its capital stock;
(l) copies of insurance binders or certificates covering the assets of the Borrower and the GuarantorSubsidiaries, authorizing them to execute, deliver and perform meeting the requirements of Section 5.5 hereof;
(m) reimbursement for Administrative Lender for Special Counsel's reasonable fees and expenses rendered through the Agreement Date;
(n) evidence that all corporate proceedings of the Borrower and the Subsidiaries taken in connection with the transactions contemplated by this Agreement, the Notes Agreement and the other Loan Papers to which each of them is a party is attached and is a true and accurate copy;
(d) Documents shall be reasonably satisfactory in form and substance acceptable to the Lenders and Special Counsel; and the Lenders shall have received copies of all documents or other evidence which the Administrative AgentLender, duly executed and completed Conditional Early Release Unlimited Guaranty of the Obligations by the GuarantorSpecial Counsel or any Lender may reasonably request in connection with such transactions;
(eo) copies of the following combined financial statements for the Borrower and its Subsidiaries, as of and for the period ended June 30, 1996: (i) combined balance sheets as of the end of such period, and (ii) combined statements of income and changes in cash for such period; which financial statements shall set forth in comparative form figures for the corresponding periods in the previous fiscal year, all executed Existing Financing Documentation, with a certificate attached thereto executed in reasonable detail and certified by an Authorized Officer Signatory to the best of the Borrower certifying that the attached copies are true his knowledge to be complete and accurate correct and have not been amendedprepared in accordance with GAAP (other than footnotes thereto), waived or consented subject to except as set forth thereinyear-end adjustment;
(fp) all other Loan Papers the fees as required pursuant to be delivered on the Closing Date duly executed and completed, dated the Closing DateSection 2.4(b) hereof;
(gq) opinions addressed to Administrative Agent on behalf of the Lenders of (i) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) special FCC counsel and/or PUC counsel to the Borrower and the Restricted Subsidiaries, as applicable, Subsidiaries addressed to the Lenders and in form and substance reasonably acceptable satisfactory to the Arranging AgentsLenders, and (iii) corporate counsel to dated the Borrower and each Restricted Subsidiary, to the extent applicable, that the execution of this Agreement and the Loan Papers, the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) and the performance of all its obligations under the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu with the Existing FinancingDate;
(hr) UCC-11 searches in appropriate jurisdictions where Collateral is located;
(s) a duly completed and executed Compliance Certificate evidencing no Default or Event dated as of Default dated the Agreement Date;
(t) the corporate organization of the Borrower shall have been reorganized such that as of the Closing Date, and a pro forma compliance certificate dated the Closing Date demonstrating the Borrower's compliance with each of the financial covenants contained in Section 8.01 hereof through the Maturity Date, with supporting projections;
(i) a certificate from the Borrower stating that there has been no material adverse change in the financial condition, business or operations shall own 100% of the Borrower outstanding capital stock of Metro Traffic Control, Inc. and its Subsidiaries since December 31(ii) each of Metro Video News, 1998;
(j) evidence reasonably satisfactory that the Borrower Inc., Metro Reciprocal, Inc., Metro Networks, Ltd. and MTC GP, Inc. and each of its Material Subsidiaries has (i) undertaken such review and assessment of its business and operations as it deems appropriate with respect to Year 2000 Complianceshall have been consolidated into Metro Traffic Control, (ii) developed an appropriate plan and timeline 50 for addressing Year 2000 Compliance issues on a timely basis, and (iii) to date, implemented that plan substantially in accordance with that timetableInc.;
(ku) repayment of all Debt for Borrowed Money owed by the Borrower and the Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule -------- 8.02 hereto or otherwise permitted under Section 8.02 hereof; ---- (l)
(i) payment to the Administrative Agent, Arranging Agents and Lenders of all fees due and payable as required in accordance simultaneously with the terms of any Fee Letter or other written agreement among the parties, and (ii) reimbursement of the reasonable costs, fees and expenses (including the reasonable fees and expenses of Special Counsel) incurred by the Administrative Agent in connection with the negotiation, preparation and execution of this Agreement, the other Loan Papers and the making of the initial LoansAdvance or the issuance of the initial Letter of Credit, the Borrower shall cause (i) all outstanding Indebtedness, interest, fees and expenses under the Prior Credit Agreement to be paid in full and (ii) the commitment of the lenders thereunder to make advances, and the issuing bank thereunder to issue letters of credit, to terminate; and
(v) in form and substance satisfactory to the Lenders and Special Counsel, such other documents, instruments and certificates as the Administrative Lender may reasonably require in connection with the transactions contemplated hereby, including without limitation the status, organization or authority of the Borrower or any Subsidiary, and the enforceability of and security for the Obligation.
Appears in 1 contract