First Borrowing. The obligations of the Lenders to make the initial Loans hereunder on the occasion of the first Borrowing are subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03: (a) The Effective Date shall have occurred. (b) Lucent shall have received counterparts of the Conversion Indenture and the Conversion Agreement, signed on behalf of each party thereto. All arrangements for the issuance of Conversion Notes (including delivery to the Conversion Trustee of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes duly executed on behalf of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner reasonably satisfactory to Lucent. (c) The Administrative Agent shall have received a certificate, dated the date of the first Borrowing and signed by the President, a Vice President or a Financial Officer of each of the Parent and the Initial Borrower, confirming compliance with the conditions set forth in Section 4.03. (d) The Agents and Lucent shall be satisfied that all fees and other amounts due and payable to them hereunder on or prior to the date of the first Borrowing, including, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by the Initial Borrower hereunder or under any other Loan Document, have been paid. (e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the initial Equipment User or Users. (f) The Agents shall have received evidence reasonably satisfactory to them that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the U.S. Security Agreement entered into by the Initial Borrower, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, have been so filed, registered or recorded. (g) The Agents shall have received a completed Perfection Certificate dated the date of the first Borrowing and signed by a Financial Officer of the Initial Borrower, together with all attachments contemplated thereby, including (i) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and (ii) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been released. (h) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 and the U.S. Security Agreement is in effect and that the Collateral Agent has been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower or any Foreign Subsidiary Equipment Owner constituting Collateral. (i) As of the date of the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, and the Administrative Agent shall have received a certificate to such effect dated the date of such Borrowing and signed by a Financial Officer of the Parent.
Appears in 1 contract
First Borrowing. The obligations of the Lenders to make Loans hereunder, and the initial Loans hereunder on the occasion obligation of the first Borrowing Issuing Bank to issue Letters of Credit hereunder, are subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03conditions that on the Closing Date:
(a) The Effective Date Agents shall have occurredreceived 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 Agents of the execution of a counterpart hereof by such Lender).
(b) Lucent The Administrative Agent shall have received counterparts of for the Conversion Indenture and the Conversion Agreement, signed on behalf account of each party thereto. All arrangements for the issuance of Conversion Notes (including delivery to the Conversion Trustee of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes Lender a duly executed on behalf Note or Notes, dated the Closing Date, complying with the provisions of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner reasonably satisfactory to LucentSection 2.04.
(c) The Administrative Agent on behalf of the Secured Parties shall have received a certificate, dated security interest in the date Collateral of the first Borrowing 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) counterparts of the Pledge Agreement, duly executed by the Borrower and all Domestic Subsidiaries of the Borrower, and a duly completed and executed Perfection Certificate from the Borrower and all Domestic Subsidiaries of the Borrower;
(ii) certificates representing 100% of all outstanding Capital Stock of each Domestic Subsidiary (or such other percentage as is owned by the Borrower or applicable Domestic Subsidiary as noted on Schedule 3.08), accompanied by stock powers endorsed in blank and Intercompany Notes, duly executed by each Domestic Subsidiary, accompanied by assignments executed in blank;
(iii) except for those Foreign Subsidiaries listed on Schedule 5.14(c), certificates representing 65% of all outstanding Capital Stock of each Foreign Subsidiary that is a Restricted Subsidiary, accompanied by stock powers endorsed in blank, and, except for those Foreign Subsidiaries listed on Schedule 5.14(b), Intercompany Notes, duly executed by each and every Wholly Owned Subsidiary that is a Foreign Subsidiary (whether owned directly or indirectly), and each and every non-Wholly Owned Subsidiary that is a Foreign Subsidiary that is borrowing from a Domestic Subsidiary or the Borrower as of the Closing Date, accompanied by assignments executed in blank;
(iv) an acknowledgement copy, or other evidence satisfactory to the Agents, of the proper filing, registration or recordation of each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Agents to be filed, registered or recorded in each jurisdiction and to each Governmental Authority in which or to which the filing, registration or recordation is so required or requested in order to create in favor of the Administrative Agent for the benefit of the Secured Parties a valid, legal and perfected security interest in or Lien on the Collateral that is the subject of the Pledge Agreement;
(v) certified copies of Requests for Information or Copies (form UCC-11), or equivalent reports from Pren▇▇▇▇-▇▇▇▇ Financial Services or other independent search service satisfactory to the Agents, listing (A) any judgment naming the Borrower or any Subsidiary, as judgment debtor, (B) any tax lien that names the Borrower or any Subsidiary as a delinquent taxpayer in any of the jurisdictions referred to in clause (iv) above and (C) any Uniform Commercial Code financing statement that names the Borrower or any Subsidiary as debtor filed in any jurisdiction in which a Lien could be perfected against assets of the Borrower or any Subsidiary;
(vi) appropriate duly executed termination statements (Form UCC-3) signed by all persons disclosed as secured parties in the President, a Vice President or a Financial Officer jurisdictions referred to in clauses (iv) and (v)(C) above (other than holders of each Liens permitted under Section 6.02) in form for filing under the Uniform Commercial Code in the applicable jurisdictions; and
(vii) any other evidence reasonably required by the Agents to evidence that the Administrative Agent (on behalf of the Parent Lenders) holds a perfected, first priority Lien in all Collateral for the Facilities, subject to no other Liens, except for Liens permitted under Section 6.02. Such evidence shall include, but is not limited to, evidence of registration of the Lenders' security interest on the register or books of certain Foreign Subsidiaries and any other action as may be required under applicable local law to perfect the Initial Borrower, confirming compliance Lenders' security interest in the Capital Stock of the Foreign Subsidiaries (other than with the conditions set forth in Section 4.03respect to those Foreign Subsidiaries listed on Schedule 5.14(c).
(d) The Agents shall have received (i) an opinion of Thom▇▇▇▇ Hine & ▇lor▇ ▇▇▇, counsel to the Borrower and Lucent the Subsidiaries, substantially in the form of Exhibit F hereto dated the Closing Date and addressed to the Agents and the Lenders, and (ii) opinions of Doser Amereller Noac▇, ▇▇rman counsel to the Borrower and the German Subsidiary, and Simm▇▇▇ & ▇imm▇▇▇, ▇▇glish counsel to the Borrower and the UK Subsidiary, each in form and substance acceptable to the Agents, dated the Closing Date and addressed to the Agents and the Lenders.
(e) The Agents shall have received counterparts of the Guarantee Agreement duly executed by the Guarantors and the Administrative Agent dated as of the Closing Date and the Indemnity, Subrogation and Contribution Agreement duly executed by the Borrower, the Guarantors and the Administrative Agent dated as of the Closing Date.
(f) The Agents shall have received:
(i) an Officer's Certificate, dated the Closing Date and signed by a Responsible Officer of each of the Borrower and the Subsidiaries confirming compliance with the conditions precedent set forth in subparagraphs (h), (i), (j), (k) and (l) of this Section 4.01 and in subparagraphs (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 each of the Borrower, the Domestic Subsidiaries and all Foreign Subsidiaries not listed on Schedule 5.14(a), certified as of a recent date by the Secretary of State (or comparable authority whether domestic or foreign (where available)) 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 domestic or foreign authority (where available));
(iii) a certificate of the Secretary or Assistant Secretary of each of the Borrower, the Domestic Subsidiaries and all Foreign Subsidiaries not listed on Schedule 5.14(b), dated the Closing 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 Closing 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 partnership, of the general partner of such party) authorizing the execution, delivery and performance of the Loan Documents to which such party is or will be satisfied a party, 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 the 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, opinions, certificates and agreements in connection with the Facilities, in form and substance satisfactory to the Agents, as it shall reasonably request.
(g) The Borrower shall have paid all fees Fees and other amounts due and payable to them hereunder the Agents or any Lender on or prior to the date of the first BorrowingClosing Date, including, to the extent invoiced, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Initial Borrower hereunder under the Fee Letter or under any other Loan Document, have been paid.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the initial Equipment User or Users.
(fh) The Agents shall have received evidence reasonably satisfactory to them that the Existing Debt has been repaid in full and all documents credit facilities, security interests and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the U.S. Security Agreement entered into by the Initial Borrower, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, other agreements related thereto have been so filed, registered or recorded.
(g) The Agents shall have received terminated and discharged in a completed Perfection Certificate dated the date of the first Borrowing and signed by a Financial Officer of the Initial Borrower, together with all attachments contemplated thereby, including (i) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and (ii) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably manner satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been released.
(h) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 Agents, NCMI and the U.S. Security Agreement is in effect Lenders, and that the Collateral Agent has been named as an additional insured Borrower and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower Subsidiaries shall have no Indebtedness or any Foreign Subsidiary Equipment Owner constituting Collateralother liabilities other than Permitted Indebtedness and liabilities disclosed on Schedule 3.05(b).
(i) As of the date of the first BorrowingNo Material Adverse Change shall have occurred since August 31, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, and the Administrative Agent 1996.
(j) The Lenders shall have received a certificate evidence satisfactory to such effect dated each of them that the date Borrower and the Subsidiaries have obtained all governmental (whether domestic or foreign), shareholder and third party consents and approvals and expiration of such Borrowing and signed by a Financial Officer all applicable waiting or appeal periods necessary or, in the opinion of the ParentLenders, appropriate in connection with the Facilities and the pledge of the Collateral for the Facilities 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 Lenders could have such effect.
(k) 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 Facilities or that could have a Material Adverse Effect.
(l) 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.
(m) The Agents and the Lenders shall have received information satisfactory to them regarding litigation, tax, tax sharing arrangements, management arrangements, accounting, labor, insurance, pension liabilities (actual or contingent), employee benefits (including post-retirement benefits), real estate leases, Material Contracts, debt agreements, intercompany agreements, property ownership, transaction with affiliates and contingent liabilities of the Borrower and the Subsidiaries.
(n) The Agents and the Lenders shall have received, and in each case approved the consolidated financial statements of the Borrower for the most recent three Fiscal Years, including balance sheets and statements of operation and cash flows, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.
(o) The Agents and the Lenders shall have completed, and shall be satisfied with the results of, their respective due diligence investigations of the business, assets, operations, properties, condition (financial and otherwise), liabilities (actual and contingent) and prospects of the Borrower and the Subsidiaries.
(p) The Agents and the Lenders shall be satisfied in all respects with all agreements and transactions between any of the Borrower and the Subsidiaries, on the one hand, and any of their Affiliates and Shareholders, on the other hand, and with all other material agreements of any of the Borrower and the Subsidiaries.
(q) The Agents and the Lenders shall be satisfied with the corporate and legal structure and capitalization of the Borrower and the Subsidiaries.
Appears in 1 contract
First Borrowing. The obligations of On the Lenders to make the initial Loans hereunder on the occasion of the first Borrowing are subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03Closing Date:
(a) The Effective Date Agent shall have occurredreceived a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(b) Lucent shall have received counterparts of the Conversion Indenture All legal matters incident to this Agreement and the Conversion Agreementborrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, signed on behalf of each party thereto. All arrangements Swaine & Moor▇, ▇▇unsel for the issuance of Conversion Notes (including delivery to the Conversion Trustee of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes duly executed on behalf of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner reasonably satisfactory to LucentAgent.
(c) The Administrative Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing 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 Executive Committee of the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such 46 42 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Cravath, Swaine & Moor▇, counsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificatecertificate from the Borrower, dated the date of the first Borrowing Closing Date and signed by the President, a Vice President or a Financial Officer of each of the Parent and the Initial Borrowerthereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 4.033.06 shall be true and correct in all material respects.
(df) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancellation of all commitments thereunder.
(g) The Agents and Lucent Agent shall be satisfied that have received all fees Fees and other amounts due and payable to them hereunder on or prior to the date of the first Borrowing, including, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by the Initial Borrower hereunder or under any other Loan Document, have been paidClosing Date.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the initial Equipment User or Users.
(f) The Agents shall have received evidence reasonably satisfactory to them that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the U.S. Security Agreement entered into by the Initial Borrower, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, have been so filed, registered or recorded.
(g) The Agents shall have received a completed Perfection Certificate dated the date of the first Borrowing and signed by a Financial Officer of the Initial Borrower, together with all attachments contemplated thereby, including (i) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and (ii) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been released.
(h) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 and the U.S. Security Agreement is in effect and that the Collateral Agent has been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower or any Foreign Subsidiary Equipment Owner constituting Collateral.
(i) As of the date of the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, and the Administrative Agent shall have received a certificate to such effect dated the date of such Borrowing and signed by a Financial Officer of the Parent.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)
First Borrowing. The obligations of On the Lenders to make the initial Loans hereunder on the occasion of the first Borrowing are subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03Closing Date:
(a) The Effective Date Each Lender shall have occurredreceived a duly executed Note complying with the provisions of Section 2.04.
(b) Lucent The Agent shall have received counterparts a favorable written opinion of the Conversion Indenture and the Conversion AgreementFriday, signed on behalf of each party thereto. All arrangements ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the issuance of Conversion Notes (including delivery Borrowers, dated the Closing Date and addressed to the Conversion Trustee of Lenders, to the Securities Authentication Order (as defined effect set forth in the Conversion Indenture) Exhibit D hereto, and Conversion Notes duly executed on behalf of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner reasonably satisfactory to LucentCravath, Swaine & ▇▇▇▇▇, counsel for the Agent; the Borrowers hereby instruct such counsel to deliver such opinion to the Agent.
(c) All legal matters incident to all of the Loan Documents and the Transactions hereunder shall be satisfactory to the Lenders and their counsel and to Cravath, Swaine & ▇▇▇▇▇, counsel for the Agent.
(d) The Administrative Agent shall have received (i) a copy of the certificate of incorporation, as amended, including all amendments thereto, of each Borrower, certified by the Secretary of State of Delaware, and a certificate as to the good standing of and charter documents filed by each Borrower from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Borrower as in effect on the date of such certificate 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 of such Borrower, or appropriate committee thereof, authorizing the Transactions on behalf of such Borrower, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation of such Borrower has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such Borrower executing any Loan Document or any other document delivered in connection herewith on behalf of such Borrower; (iii) a certificate of another officer of each Borrower as to the incumbency and specimen signature of the Secretary or such Assistant Secretary of such Borrower executing the certificate pursuant to (ii) above; and (iv) such other documents as the Lenders or Cravath, Swaine & ▇▇▇▇▇, counsel for the Agent, may reasonably request.
(e) The Agent shall have received a certificate, dated the date of the first Borrowing and signed by the President, a Vice President or a Financial Officer of each of the Parent and the Initial Borrower, confirming compliance with the conditions set forth in Section 4.03.
(d) The Agents and Lucent shall be satisfied that all fees and other amounts due and payable to them hereunder on or prior to the date of the first Borrowing, including, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by the Initial Borrower hereunder or under any other Loan Document, have been paid.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the initial Equipment User or Users.
(f) The Agents shall have received evidence reasonably satisfactory to them that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the U.S. Security Agreement entered into by the Initial Borrower, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, have been so filed, registered or recorded.
(g) The Agents shall have received a completed Perfection Certificate dated the date of the first Borrowing and signed by a Financial Officer of the Initial Borrower, together with all attachments contemplated thereby, including (i) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and (ii) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been released.
(h) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 and the U.S. Security Agreement is in effect and that the Collateral Agent has been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower or any Foreign Subsidiary Equipment Owner constituting Collateral.
(i) As of the date of the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, and the Administrative Agent shall have received a certificate to such effect dated the date of such Borrowing Closing Date and signed by a Financial Officer of the Parent, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(f) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
(g) All amounts payable pursuant to the Revolving Credit Agreements dated as of July 14, 1992, among the Parent, DIC, the Agent, and the lenders named therein shall have been paid and the commitments of the lenders thereunder shall have been terminated.
Appears in 1 contract
Sources: Credit Agreement (Dillards Inc)
First Borrowing. The obligations of On the Lenders to make the initial Loans hereunder on the occasion of the first Borrowing are subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03Closing Date:
(a) The Effective Date Agent shall have occurredreceived a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(b) Lucent shall have received counterparts of the Conversion Indenture All legal matters incident to this Agreement and the Conversion Agreementborrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, signed on behalf of each party thereto. All arrangements Swaine & Moor▇, ▇▇unsel for the issuance of Conversion Notes (including delivery to the Conversion Trustee of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes duly executed on behalf of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner reasonably satisfactory to LucentAgent.
(c) The Administrative Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing 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 Executive Committee of the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificatecertificate from the Borrower, dated the date of the first Borrowing Closing Date and signed by the President, a Vice President or a Financial Officer of each of the Parent and the Initial Borrowerthereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 4.033.06 shall be true and correct in all material respects.
(df) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agents and Lucent Agent shall be satisfied that have received all fees Fees and other amounts due and payable to them hereunder on or prior to the date of the first Borrowing, including, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by the Initial Borrower hereunder or under any other Loan Document, have been paidClosing Date.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the initial Equipment User or Users.
(f) The Agents shall have received evidence reasonably satisfactory to them that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the U.S. Security Agreement entered into by the Initial Borrower, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, have been so filed, registered or recorded.
(g) The Agents shall have received a completed Perfection Certificate dated the date of the first Borrowing and signed by a Financial Officer of the Initial Borrower, together with all attachments contemplated thereby, including (i) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and (ii) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been released.
(h) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 and the U.S. Security Agreement is in effect and that the Collateral Agent has been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower or any Foreign Subsidiary Equipment Owner constituting Collateral.
(i) As of the date of the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, and the Administrative Agent shall have received a certificate to such effect dated the date of such Borrowing and signed by a Financial Officer of the Parent.
Appears in 1 contract
Sources: 5 Year Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)
First Borrowing. The obligations of On the Lenders to make the initial Loans hereunder on the occasion of the first Borrowing are subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03Closing Date:
(a) The Effective Date This Agreement shall have occurred.been duly executed by all of the parties hereto (other than the Banks);
(b) Lucent Each Bank shall have received counterparts of the Conversion Indenture and the Conversion Agreement, signed on behalf of each party thereto. All arrangements for the issuance of Conversion Notes (including delivery to the Conversion Trustee of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes a duly executed on behalf Tranche 1 Note complying with the provisions of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner reasonably satisfactory to LucentSection 2.04.
(c) The Administrative Agent shall have received a certificatethe written opinion of Salon, Marrow & ▇▇▇▇▇▇▇, LLP, special counsel to the Borrower and the Guarantors, dated the Closing Date, addressed to the Banks and satisfactory to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent, in the form attached hereto as Exhibit G.
(d) All legal matters incident to the Loans being made on the Closing Date shall be satisfactory to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent.
(e) The Agent shall have received evidence, satisfactory to the Agent, of the maintenance by the Borrower and the Guarantors of the insurance required by Section 5.01(b).
(f) The Agent shall have received evidence, satisfactory to the Agent and to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent, that the Borrower and its Subsidiaries shall have complied in all material respects with all applicable laws, regulations, ordinances, rules and orders of any Governmental Authority, including without limitation all environmental laws, regulations, ordinances, rules and orders.
(g) The Borrower shall have executed such documentation concerning environmental issues as the Agent may request, including indemnification agreements and other documents as shall be satisfactory to the Agent and to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent.
(h) The Agent shall have received:
(i) a copy of the Borrower's Certificate of Incorporation, certified by the Secretary of State of the State of Delaware;
(ii) a certificate of such Secretary of State, dated as of a recent date, as to the good standing and charter documents of the Borrower on file in the office of such Secretary of State;
(iii) a certificate of the Secretary or an Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the By-laws of the Borrower as in effect on the date of such certification, (B) that attached thereto is a true and complete copy of resolutions adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder and that such resolutions are in full force and effect, (C) that the Certificate of Incorporation of the Borrower has not been amended since the date of the first Borrowing last amendment thereto indicated on the certificate of the Secretary of State furnished pursuant to clause (ii) above and signed (D) the incumbency and specimen signature of each officer of the Borrower executing any Loan Document or any other document delivered in connection herewith or therewith and a certification by another officer of the Borrower as to the incumbency and signature of the Secretary or an Assistant Secretary of the Borrower;
(iv) with respect to each Guarantor, a copy of such Guarantor's Certificate of Incorporation, certified by the PresidentSecretary of State of Virginia, Delaware or New York, as the case may be;
(v) with respect to each Guarantor, a Vice President certificate of such Secretary of State, dated as of a recent date, as to the good standing and charter documents of such Guarantor on file in the office of such Secretary of State;
(vi) with respect to each Guarantor, a certificate of the Secretary or an Assistant Secretary of such Guarantor dated the Closing Date and certifying (A) that attached thereto is a Financial Officer true and complete copy of the By-Laws of such Guarantor as in effect on the date of such certification, (B) that attached thereto is a true and complete copy of resolutions adopted by the Board of Directors of such Guarantor and by the Executive Committee of such Board authorizing the execution, delivery and performance of this Agreement, (C) that the Certificate of Incorporation of such Guarantor has not been amended since the date of the last amendment thereto indicated on the certificate of the Secretary of State furnished pursuant to clause (v) above and (D) the incumbency and specimen signature of each officer of such Guarantor executing this Agreement or any other document delivered in connection herewith or therewith and a certification by any other officer of such Guarantor as to the incumbency and signature of the Parent Secretary or an Assistant Secretary of such Guarantor; and
(vii) such other documents as the Banks or Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Agent, may reasonably request;
(i) Each of the Company's revolving credit agreement with Crestar Bank and the Initial Borrower, confirming compliance Company's line of credit agreement with Chemical Bank shall have been terminated on or prior to the conditions set forth in Section 4.03.Closing Date; and
(dj) The Agents and Lucent Agent shall be satisfied that have received all fees Fees and other amounts due and payable to them hereunder on or prior to the date of the first Borrowing, including, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by the Initial Borrower hereunder or under any other Loan Document, have been paidClosing Date.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the initial Equipment User or Users.
(f) The Agents shall have received evidence reasonably satisfactory to them that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the U.S. Security Agreement entered into by the Initial Borrower, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, have been so filed, registered or recorded.
(g) The Agents shall have received a completed Perfection Certificate dated the date of the first Borrowing and signed by a Financial Officer of the Initial Borrower, together with all attachments contemplated thereby, including (i) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and (ii) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been released.
(h) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 and the U.S. Security Agreement is in effect and that the Collateral Agent has been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower or any Foreign Subsidiary Equipment Owner constituting Collateral.
(i) As of the date of the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, and the Administrative Agent shall have received a certificate to such effect dated the date of such Borrowing and signed by a Financial Officer of the Parent.
Appears in 1 contract
First Borrowing. The obligations of the Lenders to make the initial Loans hereunder on the occasion in respect of the first Borrowing are Credit Event hereunder is subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03additional conditions precedent:
(a) The Effective Date Lenders shall have occurredreceived the favorable written opinion of counsel for the Borrower and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the Closing Date, addressed to the Lenders and satisfactory to the Agent.
(b) Lucent The Lenders shall have received counterparts (i) a copy of the Conversion Indenture certificate or articles of incorporation or constitutive documents, in each case as amended to date, of each of the Borrower, the Grantors and the Conversion Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each from the Secretary of State or other appropriate official of each state in which it is qualified to do business, in each case dated as of a recent date; (ii) a certificate of the Secretary of the Borrower, each Grantor and each Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy 56 62 of such person's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolutions described in item (B) below, (B) that attached thereto is a true and complete copy of resolutions adopted by such person's Board of Directors authorizing the execution, delivery and performance of this Agreement, signed the Security Documents, the Notes, the other Loan Documents and the Credit Events hereunder, as applicable, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that such person's certificate or articles of incorporation or constitutive documents have not been amended since the date of the last amendment thereto shown on behalf the certificate of good standing furnished pursuant to (i) above, and (D) as to the incumbency and specimen signature of each party thereto. All arrangements for of such person's officers executing this Agreement, the issuance Notes, each Security Document or any other Loan Document delivered in connection herewith or therewith, as applicable; (iii) a certificate of Conversion Notes another of such person's officers as to incumbency and signature of its Secretary; and (including delivery to iv) such other documents as the Conversion Trustee of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes duly executed on behalf of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner Agent or any Lender may reasonably satisfactory to Lucentrequest.
(c) The Administrative Agent shall have received a certificate, dated the date of the first Borrowing Closing Date and signed by the President, a Vice President or a Financial Officer of each of the Parent and the Initial Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.035.01 hereof and the conditions set forth in this Section 5.02.
(d) The Agents Each Lender shall have received its Tranche A Revolving Credit Note and Lucent shall be satisfied that all fees and other amounts due and Tranche B Revolving Credit Note duly executed by the Borrower, payable to them hereunder on or prior to its order and otherwise complying with the date provisions of the first Borrowing, including, to the extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by the Initial Borrower hereunder or under any other Loan Document, have been paidSection 2.04 hereof.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated the Security Documents and certificates evidencing the Pledged Stock, together with undated stock powers executed in blank, each duly executed by Section 6.13, in either case signed on behalf of the initial Equipment User or Usersapplicable Grantors.
(f) The Agents Agent shall have received evidence reasonably certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to them that the Lenders of a UCC Reporter Service, listing all documents effective financing statements which name as debtor the Borrower, any Guarantor or any Grantor and instrumentswhich are filed in the appropriate offices in the states or other applicable jurisdictions in which are located the chief executive office and other operating offices of such person, including together with copies of such financing statements or of the security agreements to which such filings relate. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have received termination statements in form and substance satisfactory to it.
(g) Each document (including, without limitation, each Uniform Commercial Code financing statements, statement) required by law or reasonably requested by either the Agent to be filed, registered or recorded in order to create or perfect in favor of the Agent for its own benefit and for the benefit of the Lenders a first priority 57 63 perfected Lien in the Collateral (subject to the Liens intended to be created under permitted by Section 7.01 hereof) shall have been prepared for filing, registration or recordation in each jurisdiction in which the U.S. Security Agreement entered into by the Initial Borrowerfiling, registration or recordation thereof is so required or requested, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, have been so filed, registered or recorded.
(g) The Agents Agent shall have received a completed Perfection Certificate dated the date duly executed copy of the first Borrowing and signed by a Financial Officer of the Initial Borrowereach such filing, together with all attachments contemplated therebyregistration or recordation, including ready for immediate filing, registration or recordation.
(ih) The Agent shall have received the results of a search of tax and other Liens, and judgments and of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower Borrower, each Guarantor and each Grantor in the jurisdictions contemplated by in which the Perfection Certificate Borrower, each Guarantor and (ii) copies of the financing statements (or similar documents) disclosed by such search each Grantor is doing business and/or in which any Collateral is located, and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or in which Uniform Commercial Code filings have been released.
made against the Borrower, each Guarantor and each Grantor pursuant to paragraph (hg) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 and the U.S. Security Agreement is in effect and that the Collateral Agent has been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower or any Foreign Subsidiary Equipment Owner constituting Collateralabove.
(i) As of the date of the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, The Lenders and the Administrative Agent shall have received a certificate and determined to such effect be in form and substance satisfactory to them:
(i) the most recent (dated the date of such Borrowing and signed by a Financial Officer within thirty (30) days of the Parent.Closing Date) schedule and aging of accounts receivable and inventory designations of the Borrower;
(ii) evidence that the Borrower has raised not less than $100,000,000 in cash net proceeds from an IPO;
(iii) evidence of the compliance by the Borrower with Section 6.03 hereof;
(iv) the financial statements described in Section 4.07 hereof;
(v) evidence that the Transactions are in compliance with all material applicable laws and regulations;
(vi) evidence of payment of all fees owed to the Agent and the Lenders by the Borrower under this Agreement, the Commitment Letter, the Fee Letter or otherwise;
(vii) evidence that all requisite third party consents (including, without limitation, consents with respect to the Borrower and each of the Grantors and Guarantors) to the Transactions have been received;
(viii) copies of all major customer, supplier contracts and employment and non-compete agreements with respect to the Borrower and its subsidiaries;
Appears in 1 contract
Sources: Credit Agreement (American Bank Note Holographics Inc)
First Borrowing. The obligations of the Lenders to make Loans --------------- hereunder, and the initial Loans hereunder on the occasion obligation of the first Borrowing Issuing Bank to issue Letters of Credit hereunder, are subject to the satisfaction of the following conditions, in addition conditions that on the date of the first Borrowing hereunder (such date being referred to those set forth in Section 4.03:herein as the "Closing Date"): -------------
(a) The Effective Date Agent shall have occurredreceived 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, 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).
(b) Lucent The Agent shall have received (i) for the account of each Lender, a duly executed Note or Notes, dated the Closing Date, complying with the provisions of Section 2.04 and (ii) for the account of the Swingline Lender, a duly executed Swingline Note, dated the Closing Date, complying with the provisions of Section 2.04.
(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) counterparts of the Security Agreement, duly executed by the Borrower, and a duly completed and executed Perfection Certificate from the Borrower;
(ii) certificates representing 65% of all outstanding Capital Stock of each Foreign Subsidiary (other than uncertificated Capital Stock of Firearms Training Systems Netherlands B.V.), accompanied by stock powers endorsed in blank, and the Intercompany Notes, duly executed by each Foreign Subsidiary, accompanied by assignments executed in blank;
(iii) an acknowledgement copy, or other evidence satisfactory to the Agent, of the proper filing, registration or recordation of each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Agent to be filed, registered or recorded in each jurisdiction and to each Governmental Authority in which or to which the filing, registration or recordation is so required or requested 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 that is the subject of the Security Agreement or any Pledge Agreement;
(iv) certified copies of Requests for Information or Copies (form UCC-11), or equivalent reports from ▇▇▇▇▇▇▇▇-▇▇▇▇ Financial Services or other independent search service satisfactory to the Agent, listing
(A) any judgment naming the Borrower or any other Loan Party, as judgment debtor, (B) any tax lien that names the Borrower or any other Loan Party as a delinquent taxpayer in any of the jurisdictions referred to in clause (iii) above and (C) any Uniform Commercial Code financing statement that names the Borrower or any other Loan Party as debtor filed in any of the jurisdictions referred to in clause (iii) above;
(v) appropriate duly executed termination statements (Form UCC-3) signed by all persons disclosed as secured parties in the jurisdictions referred to in clause (iii) above (other than holders of Liens permitted under Section 6.02) in form for filing under the Uniform Commercial Code of such jurisdictions;
(vi) an escrow agreement or payoff letter in form and substance satisfactory to the Agent executed by the existing lenders and holders of Liens (other than Liens permitted under Section 6.02) in respect of the Borrower and the Subsidiaries pursuant to which such lenders and Lien holders will, among other things, deliver the termination statements referred to in clause (v) above into escrow pending the Closing;
(vii) counterparts of the Buyer Pledge Agreement, duly executed by the Buyers;
(viii) counterparts of the Seller Pledge Agreement, duly executed by the Seller;
(ix) counterparts of (A) a valid and binding pledge agreement effective under the laws of the Netherlands Antilles to create the equivalent of a perfected security interest for the benefit of the Agent and the Secured Parties in the Capital Stock of Firearms Training Systems Netherlands B.V. and (B) a valid and binding pledge agreement effective under the laws of Singapore to create the equivalent of a perfected security interest for the benefit of the Agent and the Secured Parties in the Capital Stock of F.A.T.S. Singapore PTE LTD.;
(x) certificates representing all the Common Stock outstanding after giving effect to the Recapitalization, accompanied by stock powers endorsed in blank;
(xi) counterparts of each Agency Account Agreement or other Collateral Document requested by the Agent, duly executed by the parties thereto; and
(xii) counterparts of an Acknowledgement of Subordination, substantially in the form of Exhibit R, duly executed by each of the Subsidiaries.
(d) The Agent shall have received an opinion of each of (i) the appropriate counsel to the Loan Parties necessary to give those opinions set forth in Exhibit L-1 hereto, Georgia counsel to the Borrower in the form of Exhibit L-2 hereto and Singapore and Netherlands counsel to the Borrower in form and substance satisfactory to the Lenders and (ii) copies of each opinion required to be delivered by counsel to the Borrower, the Buyer and the Seller pursuant to the Recapitalization Agreement, accompanied in each case by a letter, unless such opinion is addressed to the Agent and the Lenders or expressly includes a reliance provision, from the counsel rendering such opinion, stating that the Agent and the Lenders are entitled to rely on such opinion as if it were addressed to the Agent and the Lenders; each such opinion or reliance letter, as the case may be, referred to in clauses (i) and (ii) shall be dated the Closing Date and addressed to the Agent and the Lenders.
(e) The Agent shall have received counterparts of the Conversion Indenture Junior Subordination Agreement duly executed by the Sponsor, the Buyers and the Conversion Agreement, signed on behalf of each party thereto. All arrangements for the issuance of Conversion Notes (including delivery to the Conversion Trustee Borrower as of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes duly executed on behalf of the Parent in an aggregate principal amount of $2,000,000,000) shall have been completed in a manner reasonably satisfactory to LucentClosing Date.
(cf) The Administrative Agent shall have received received:
(i) a certificate, dated the date of the first Borrowing Closing Date and signed by the President, a Vice President or a Financial Officer of each of the Parent Borrower and the Initial Borrower, Subsidiaries confirming compliance with the conditions precedent set forth in paragraphs (h), (i), (j), (l), (o), (p), (q) and (s) of this Section 4.034.01 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 each of the Loan Parties, 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 each of the Loan Parties dated the Closing 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 Closing 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 partnership, of the general partner of such party) authorizing the execution, delivery and performance of the Loan Documents to which such party is or will be a party, and, in the case of the Borrower, the consummation of the Recapitalization and 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, (D) as to the 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 (E) with respect to the Borrower, that attached thereto is a true and complete executed copy of the Recapitalization Agreement, the Note Documents and all other documents and instruments executed and delivered therewith; and
(iv) such other documents, opinions, certificates and agreements in connection with the Facilities, in form and substance satisfactory to the Agent, as it shall reasonably request.
(dg) The Agents and Lucent Borrower shall be satisfied that have paid all fees Fees and other amounts due and payable to them hereunder the Agent or any Lender on or prior to the date of the first BorrowingClosing Date, including, to the extent invoiced, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Initial Borrower hereunder under the Fee Letter or under any other Loan Document, Document (to the extent invoices or statements therefor have been paid.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the initial Equipment User or Users.
(f) The Agents shall have received evidence reasonably satisfactory to them that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the U.S. Security Agreement entered into by the Initial Borrower, and to protect the Initial Borrower's ownership interest in (and the Lien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, have been so filed, registered or recorded.
(g) The Agents shall have received a completed Perfection Certificate dated the date of the first Borrowing and signed by a Financial Officer of the Initial Borrower, together with all attachments contemplated thereby, including (i) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and (ii) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.03 or have been releasedreceived).
(h) The Administrative Agent All conditions set forth in the Recapitalization Agreement to the obligations of the Buyers shall have received evidence reasonably satisfactory to it that been satisfied; the insurance required by Section 5.05 and the U.S. Security Recapitalization Agreement is in effect and that the Collateral Agent has shall not have been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower altered, amended or otherwise changed or supplemented or any Foreign Subsidiary Equipment Owner constituting Collateralcondition therein waived, without the prior written consent of the Agent.
(i) As All components of the date Recapitalization shall have been consummated in accordance with the terms of the Recapitalization Agreement and in compliance with applicable law and regulatory approvals simultaneously with the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its SubsidiariesBorrowing hereunder, including all commitments under the Bank Credit Agreement, receipt of 95 $36,000,000 of gross proceeds from the Equity Purchase and $40,000,000 of gross proceeds from the Permitted Senior Subordinated Notes.
(i) The terms and conditions applicable to the Permitted Junior Preferred Stock shall comply with Section 6.01(f) and shall otherwise be fully drawn, reasonably satisfactory to the Agent and the Administrative Lenders and (ii) the terms and conditions applicable to the Permitted Senior Subordinated Notes, the Permitted Senior Preferred Stock and the Warrants shall not have been changed in any material respect from those set forth in the letter agreement and summary of principal terms and conditions from NationsBridge, L.L.C. dated June 5, 1996.
(k) The Agent shall have received and approved the monthly working capital detail of the Borrower for the first projected fiscal year after Closing and pro forma financial statements of the Borrower and the Subsidiaries as of, and for the 12 months ended on, March 31, 1996, giving effect to the Recapitalization and the transactions contemplated hereby, prepared by the Borrower.
(l) No Material Adverse Change shall have occurred since March 31, 1996.
(m) The Agent shall have received certification in form and substance satisfactory to the Agent as to the financial condition, available surplus and solvency of the Borrower and the Subsidiaries (after giving effect to the Recapitalization) from an independent firm acceptable to the Agent; provided -------- that the firm of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ shall be acceptable to the Agent.
(n) The Agent shall have received (i) satisfactory opinions of counsel to the Loan Parties (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of the documents for the Facilities) and such corporate resolutions, certificates and other documents as the Agent shall reasonably require and (ii) satisfactory evidence that the Agent (on behalf of the Lenders) holds a certificate perfected, first priority Lien in all Collateral for the Facilities, subject to no other Liens, except for Liens permitted under Section 6.02.
(o) 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 Agent, appropriate in connection with the Facilities and the pledge of the Collateral for the Facilities without any action being taken that could restrain, prevent or impose any material adverse condition on the Borrower and the Subsidiaries or the Recapitalization 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 Agent could have such effect; provided -------- that no failure of the foregoing condition shall be deemed to have occurred as a result of a failure to obtain a novation with the Seller of the Borrower's contracts with departments or agencies of the United States Government to supply the United States Government with simulators which is required because of the Equity Purchase and the Redemption.
(p) 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 dated on the ability of the Borrower and the Subsidiaries to perform their obligations under the documents to be executed in connection with the Facilities, except as disclosed to and approved by the Agent prior to the date hereof.
(q) There shall be no less than $5,000,000 of such Borrowing Unused Revolving Credit Commitments and signed by a Financial Officer cash of the ParentBorrower and the Subsidiaries on hand at Closing after giving effect to the Recapitalization.
(r) There shall not have occurred and be continuing (i) a material adverse change in the market for syndicated bank credit facilities or (ii) a material disruption of, or a material adverse change in, financial, banking or capital market conditions.
(s) Each Notice of Assignment required under the Assignment of Claims Act of 1940, as amended, with respect to all U.S. Federal Government Contracts shall have been filed with the applicable Governmental Authority in order to assign to the Agent all moneys due or to become due under each such Government Contract (other than (i) those Government Contracts identified as completed on Schedule 13 to the Security Agreement and (ii) Government Contract GS-02F-0414D with the General Services Administration) with a total current or potential value exceeding $500,000.
Appears in 1 contract