First Credit Event. On the Closing Date: (a) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions. (b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date. (c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: (i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request. (d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02. (e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g). (f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent. (g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration. (h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld). (i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders prior to the Closing Date.
Appears in 2 contracts
Sources: Credit Agreement (TRW Automotive Inc), Credit Agreement (TRW Automotive Inc)
First Credit Event. On or prior to the Closing Date:.
(a) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement and each other Loan Document to be executed on or prior to the Closing Date, signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and such other applicable Loan Documents.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank the L/C Issuer on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and other counsel set forth on Schedule 5.02(b), special counsel for Holdings in each case addressed to the Administrative Agent, the Lenders and the U.S. BorrowerL/C Issuer, substantially to the effect set forth which shall be in Exhibit M form and (ii) local counsel substance reasonably satisfactory to the Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: , to the extent applicable:
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying;
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ;
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party; and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank L/C Issuer on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied satisfied, and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) The Administrative Agent and the Lenders shall have received a solvency certificate substantially in the form of Exhibit B-1 and signed by the Chief Financial Officer of the Collateral Borrower.
(f) The Term Credit Agreement shall be in full force and Guarantee Requirement effect, all conditions to funding thereunder (other than delivery of a notice of borrowing) shall be satisfied, and Ultimate Parent shall have obtained Term Loan gross proceeds of $200,000,000 thereunder.
(g) All amounts due or outstanding in respect of the Existing Credit Agreement shall have been (or substantially with the closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof discharged and released, and the Administrative Agent shall have received a “pay-off” letter in respect thereof.
(h) The Administrative Agent and the Lenders shall have received the financial information referred to intercompany Indebtednessin Section 4.05.
(i) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, (x) for the Foreign Borrower shall have outstanding no Indebtedness and the Borrower and its Subsidiaries set forth on Schedule 5.10(gshall have outstanding no Indebtedness other than (i) to satisfy any the extensions of paragraphs (a)credit under this Agreement, (e)ii) the Term Loans under the Term Credit Agreement, (f) and (giii) of the Collateral and Guarantee Requirementother Indebtedness permitted pursuant to Section 7.01, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in Holdcos shall have no Indebtedness other than Indebtedness permitted under the Collateral Term Loan Credit Agreement and Guarantee Requirement or (z) after giving effect to deliver the issuance of any Letters of Credit hereunder to backstop or otherwise replace any letters of credit outstanding under the Existing Credit Agreement, the Borrower shall have remaining Availability in an opinion amount of counsel relating not less than $25,000,000.
(j) Since December 31, 2011 there shall not have been any event, development or circumstance that, individually or in the aggregate, has, had or would reasonably be expected to clauses have a Material Adverse Effect.
(xk) All fees and expenses due and payable on or (y) above, in each case prior to the Closing Date, such requirements pursuant to the Engagement Letter and the Fee Letter or as may otherwise be agreed between the Company and the Joint Lead Arrangers shall have been paid (which amounts, at the option of the Company, may be satisfied after offset against the Closing Date in accordance with Section 5.10(gproceeds of the Facilities), including, to the extent invoiced, reimbursement or payment of all reasonable out of pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(fl) The Administrative Agent shall have received copies of, or an all insurance broker's or agent's certificate as to coverage under, certificates satisfying the insurance policies required by requirements of Section 5.02, each 6.02 of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agentthis Agreement.
(gm) The Initial Lenders Administrative Agent shall be reasonably satisfied with the material terms of the Purchase Agreement have received all documentation and all other material agreements to be entered into in connection with the Transactionsinformation required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including any stockholder agreement to be entered into between without limitation, the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse USA PATRIOT Act to the Lenders extent requested not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders less than five Business Days prior to the Closing Date.
(n) The Borrower shall have used commercially reasonable efforts to deliver, or cause to be delivered, to the Administrative Agent both an inventory appraisal from an Acceptable Appraiser and field examination, in each case that are reasonably satisfactory in form and substance to the Administrative Agent on or prior to the Closing Date, and (i) if such appraisal and field examination have been delivered on or prior to the Closing Date, the Administrative Agent shall have received a Borrowing Base Certificate effective as of the last day of the month immediately preceding the Closing Date or, (ii) if such appraisal and field examination have not been delivered on or prior to the Closing Date, notwithstanding the Borrower’s use of commercially reasonable efforts to deliver, or cause to be delivered, such appraisal and field examination, the Administrative Agent shall have received the then-most recently delivered Borrowing Base Certificate under the Existing Credit Agreement as updated in the ordinary course (and not less frequently than monthly), it being understood and agreed that the advance rates against Eligible Inventory and Eligible Accounts shall be as set forth in this Agreement and not by reference to the Existing Credit Agreement.
(o) The Administrative Agent shall have received the Pro Forma Closing Balance Sheet. For purposes of determining compliance with the conditions specified in this Section 5.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 2 contracts
Sources: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings the Loan Parties and the U.S. Borrower, substantially to the effect set forth in Exhibit M Crestwood Equity Partners and (ii) local counsel ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, each in form and substance reasonably satisfactory to the Administrative Agent, in each case Agent (A) dated the Closing Date, Date and (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially Lenders, in each case as of the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably requestClosing Date, and each of Holdings Loan Party and the U.S. Borrower Crestwood Equity Partners hereby instructs its instruct their counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party and Crestwood Equity Partners each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan PartyParty and Crestwood Equity Partners, (A) in the case of the formation documents of a corporationregistered entity, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party and Crestwood Equity Partners as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability companyother constitutional documents, certified by the Secretary Secretary, Assistant Secretary, other senior officer, or Assistant Secretary the general partner, managing member or sole member, of each such Loan PartyParty and Crestwood Equity Partners; and
(ii) a certificate of the Secretary Secretary, Assistant Secretary, Director, President or Assistant Secretary other senior officer or the general partner, managing member or sole member, of each Loan Party and Crestwood Equity Partners, in each case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan Party and Crestwood Equity Partners 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, Date,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party and Crestwood Equity Partners (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and the Parent Guarantee, as applicable and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer or director executing any Loan Document Document, the Parent Guarantee or any other document delivered in connection herewith on behalf of such Loan Party and Crestwood Equity Partners, as applicable, and
(ED) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party and Crestwood Equity Partners or, to the knowledge of such personPerson, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency Party and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestCrestwood Equity Partners.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of Subject to any items on Schedule 5.14, the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Merger shall have been consummated or shall be consummated simultaneously substantially contemporaneously with the initial Credit Event closing under this Agreement Agreement.
(f) The Lenders shall have received a solvency certificate substantially in accordance with applicable law the form of Exhibit F and signed by a Financial Officer of the Purchase Agreement Borrower confirming the solvency of the Borrower and all other related documentation (without its Restricted Subsidiaries on a consolidated basis after giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Transactions.
(ig) The other Transactions Agents shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided received all fees payable thereto or to any Lender or to the Lenders Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the Parent Guarantee.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include by electronic means transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local and specialist counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) if available from an official in the case of a corporationsuch jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (Dv) 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 Loan Party and Party,
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; , and
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (ivvii) such other documents as the Administrative Agent, Agent and the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida and/or the jurisdiction in which such Loan Parties Party is formed and existing and lien searches of any other office or jurisdiction in which the jurisdictions contemplated by the Perfection Certificates Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that that, to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than execution and delivery of the Collateral Agreement, the Subsidiary Guarantor Pledge Agreement and any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement, the registration or recording of the Vessel Mortgage in the appropriate ship registry or the delivery of stock certificates or other instruments representing Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in and the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior Security Document giving rise to the security interest therein) is not able to be provided on the Closing DateDate after the Borrower’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)5.10.
(e) The Lenders shall have received the financial statements and interim financial reports referred to in Section 3.05.
(f) The Administrative Agent Lenders shall have received copies of, or an insurance broker's or agent's a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit C and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Borrower confirming the solvency of the Borrower and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insuredconsolidated basis, in form and substance satisfactory each case, after giving effect to the Administrative AgentTransactions on the Closing Date.
(g) The Initial Lenders Agents shall be reasonably satisfied with have received all fees payable thereto or to any Arranger or Lender on or prior to the material terms of Closing Date and, to the Purchase Agreement and extent invoiced, all other material agreements amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, A▇▇▇▇▇▇ (Bermuda) Limited and W▇▇▇▇▇ ▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be entered into in connection with reimbursed or paid by the Transactions, including Loan Parties hereunder or under any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationLoan Document.
(h) The Stock Purchases Administrative Agent and/or Collateral Agent (as appropriate) shall have been consummated or shall be consummated simultaneously received insurance certificates, endorsements, copies of cover notes and certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the initial Credit Event under requirements of Section 5.02 (including any such items also covered in clause (iv) of paragraph (k) of this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheldSection 4.02).
(i) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(j) [reserved].
(k) The Collateral Agent shall have received:
(i) evidence that the Vessel Mortgage has been duly executed and delivered by the Subsidiary Guarantor and duly registered with the National Vessel Documentation Center of the Coast Guard in accordance with the laws of United States and such other evidence that the Mortgage Trustee may deem necessary in order to create a valid first preferred ship mortgage and subsisting Lien securing the Obligations on the Mortgaged Vessel described therein in favor of the Mortgage Trustee for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) an Abstract of Title and Certificate of Documentation issued by the United States Coast Guard stating that the Mortgaged Vessel is owned by the Subsidiary Guarantor and showing that there are of record no liens or other encumbrances on the Mortgaged Vessel except the Vessel Mortgage in favor of the Mortgage Trustee and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the Vessel Mortgage, to the effect that the Mortgaged Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the Mortgaged Vessel naming the Mortgage Trustee, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
Appears in 2 contracts
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings the Loan Parties and the U.S. Borrower, substantially to the effect set forth in Exhibit M Crestwood Equity Partners and (ii) local counsel ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, each in form and substance reasonably satisfactory to the Administrative Agent, in each case Agent (A) dated the Closing Date, Date and (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially Lenders, in each case as of the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably requestClosing Date, and each of Holdings Loan Party and the U.S. Borrower Crestwood Equity Partners hereby instructs its instruct their counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party and Crestwood Equity Partners each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan PartyParty and Crestwood Equity Partners, (A) in the case of the formation documents of a corporationregistered entity, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party and Crestwood Equity Partners as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability companyother constitutional documents, certified by the Secretary Secretary, Assistant Secretary, other senior officer, or Assistant Secretary the general partner, managing member or sole member, of each such Loan PartyParty and Crestwood Equity Partners; and
(ii) a certificate of the Secretary Secretary, Assistant Secretary, Director, President or Assistant Secretary other senior officer or the general partner, managing member or sole member, of each Loan Party and Crestwood Equity Partners, in each case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan Party and Crestwood Equity Partners 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, Date,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party and Crestwood Equity Partners (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and the Parent Guarantee, as applicable and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer or director executing any Loan Document Document, the Parent Guarantee or any other document delivered in connection herewith on behalf of such Loan Party and Crestwood Equity Partners, as applicable, and
(ED) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party and Crestwood Equity Partners or, to the knowledge of such personPerson, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency Party and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestCrestwood Equity Partners.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of Subject to any items on Schedule 5.14, the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that .
(e) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions.
(f) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent that it is not practicable (w) for invoiced, all other amounts due and payable pursuant to the Loan Parties specified Documents on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be satisfied after reimbursed or paid by the Closing Date in accordance with Section 5.10(g)Loan Parties hereunder, under any Loan Document or under the Parent Guarantee.
(fg) (x) The representations and warranties set forth in the Loan Documents and in the Parent Guarantee shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and except to the extent such representations and warranties are expressly qualified by materiality (in which case such representations and warranties shall be true and correct in all respects as of the applicable date) and (y) no Default or Event of Default shall have occurred and be continuing on and as of the Closing Date.
(h) The Administrative Agent shall have received copies of, or an insurance broker's or agent's a certificate signed by a Responsible Officer of the Borrower as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, matters set forth in form and substance satisfactory to the Administrative Agent.
clause (g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Section 4.02.
(i) The other Transactions Administrative Agent shall have been consummated in a manner consistent received all documentation and other information required by regulatory authorities with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided respect to the Lenders prior to Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent at least 10 days in advance of the Closing Date.
(j) The Administrative Agent shall have received flood hazard determinations and evidence of flood insurance with respect to the Closing Date Real Property, consistent with the first sentence of Section 5.02(c).
(k) The Administrative Agent shall have received the financial statements referenced in Section 3.05 (it being understood the filing of any such financial statements with the SEC or in any public proxy statement shall satisfy the respective delivery requirements in this condition).
(l) The Administrative Agent (or its counsel) shall have received from Crestwood Equity Partners either (a) a counterpart of the Parent Guarantee signed on behalf of Crestwood Equity Partners or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of the Parent Guarantee) that Crestwood Equity Partners has signed a counterpart of the Parent Guarantee.
(m) The Administrative Agent shall have received customary evidence that all fees, accrued interest and principal outstanding under the Existing Credit Agreement as of the Closing Date shall have been paid in full to the lenders under the Existing Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of the Borrower, the L/C Issuer and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, itself and the Lenders and each Issuing Bank on the Closing DateL/C Issuer, a favorable written opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York and England and Wales counsel for the Loan Parties, (ii) ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special Nevada counsel for the Loan Parties and (iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇Co., special Israel counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative AgentLoan Parties, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent Lenders and the Lenders L/C Issuers and (C) substantially in form and substance consistent with similar transactions for the form of Exhibit N Borrower and reasonably satisfactory to the Administrative Agent covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary, Responsible Officer or similar officer of each Loan Party or, in the case of each any UK Subsidiary Loan Party each Party, a certificate of a Director, dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by a Responsible Officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) ); it being understood that, in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such any Israeli Subsidiary Loan Party; (ii) a certificate , an extract from the Israeli Registrar of the Secretary Companies dated on or Assistant Secretary of each Loan Party dated about the Closing Date and certifying shall be sufficient for the purpose of this clause (Ac)(ii),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(v) in the case of any UK Subsidiary Loan Party, (C) that attached thereto is a true and complete copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement resolutions duly passed by the shareholders of such UK Subsidiary Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such UK Subsidiary Loan Party is a party and that such shareholder resolutions have not been modified, rescinded or amended since and are in full force and effect on the date of the last amendment thereto disclosed pursuant to clause Closing Date,
(i) above, (Dvi) 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 Loan Party and Party, and
(Evii) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates Certificate, dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the extent that it is not practicable (w) Administrative Agent for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(grelease shall have been made).
(fe) The Administrative Agent shall have received copies of, or an insurance broker's or agent's a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit I and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Borrower confirming the solvency of the Borrower and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory consolidated basis after giving effect to the Administrative AgentTransactions on the Closing Date.
(f) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document (which amounts may be offset against the proceeds of the Term B Facility and the Revolving Facility).
(g) The Initial Lenders Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be reasonably satisfied with (or waived pursuant to the material terms hereof) as of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationClosing Date.
(h) The Stock Purchases Administrative Agent shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation received at least three (without giving effect to any amendment, waiver or other modification adverse 3) Business Days prior to the Lenders Closing Date all documentation and other information required by Section 9.20, to the extent such documentation and other information has been requested not approved by less than ten (10) Business Days prior to the Initial Lenders, such approval not unreasonably to be withheld)Closing Date.
(i) The other Transactions Arrangers shall have been consummated received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its subsidiaries, for the fiscal years ended December 31, 2017 and December 31, 2018 and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its subsidiaries, for the fiscal quarter ended June 30, 2019 and the period of the fiscal year then ended, in a manner consistent each case prepared in accordance with the sources and uses shown on the pro forma capitalization dated February 13GAAP in all material respects.
(j) [Reserved].
(k) The Administrative Agent shall have received, 2003, provided at least three (3) Business Days prior to the Lenders Closing Date, a Beneficial Ownership Certification in relation to the Borrower if it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and is not subject to any exemption thereunder, to the extent requested not less than ten (10) Business Days prior to the Closing Date.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, (i) all Indebtedness under the Existing Credit Agreement shall have been, or shall be substantially concurrently with the initial borrowing hereunder, repaid and all commitments thereunder terminated and the Administrative Agent shall have received evidence thereof and (ii) the Borrower shall not have any Indebtedness other than the Term B Facility, the Revolving Facility and other Indebtedness permitted under Section 6.01.
(m) Since December 31, 2018, there shall not have occurred any event or circumstance that has had or would reasonably be expected to have a Material Adverse Effect.
(n) The Borrower shall have received all material governmental and regulatory approvals necessary to effect the Transactions on the terms contemplated by this Agreement.
(o) The Borrower shall have delivered to the Administrative Agent a certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b) and Section 4.02(m) hereof.
(p) [Reserved].
(q) [Reserved].
(r) The Arrangers, the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence satisfactory to each of the Arrangers that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board.
(s) There shall be no action, suit, proceeding (whether administrative, judicial or otherwise) or arbitration (whether or not purportedly on behalf of any Loan Party) at law or in equity, or any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign that are pending or, to the knowledge of the Borrower, threatened against any Loan Party or affecting any property of any Loan Party, that relate to the Loan Documents or the Transactions.
(t) The Loan Parties shall have insurance complying with the requirements of Section 5.02 in place and in full force and effect, and the Administrative Agent, the Collateral Agent and the Arrangers shall each have received (x) a certificate from the Borrower’s insurance broker(s) reasonably satisfactory to them stating that such insurance is in place and in full force and effect and (y) copies of all policies evidencing such insurance (or a binder, commitment or certificates signed by the insurer or a broker authorized to bind the insurer, in which case copies of the applicable policies shall be delivered to the Administrative Agent within sixty (60) days after the Closing Date or such later date as the Administrative Agent may agree in its sole discretion) naming the Collateral Agent as an additional insured and as loss payee (until the Termination Date), in accordance with the terms set forth in Section 5.02. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 2 contracts
Sources: Incremental Assumption Agreement and Second Amendment to Credit Agreement (Playtika Holding Corp.), Credit Agreement (Playtika Holding Corp.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank L/C Issuer on the Closing Date, a favorable written opinion of (i) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special LLP, counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local or foreign counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank L/C Issuer on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent organizational documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation, certificate of formation or limited liability agreement other equivalent organizational documents of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(h), the elements of the U.S. Borrower, dated Collateral Requirement required to be satisfied on the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment lien filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate, lien searches with the United States Patent and Trademark Office, United States Copyright Office and the Trademark Division of the Puerto Rico State Department and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to released concurrently with the extent that it is not practicable (w) for closing of the Loan Parties specified Transactions on Schedule 5.10(g) to satisfy paragraph the Closing Date.
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Merger shall have been consummated simultaneously or shall be consummated simultaneously substantively concurrent with the initial Credit Event closing under this Agreement in accordance with applicable law and the Purchase Merger Agreement, and no provision of the Merger Agreement shall have been amended, waived or otherwise modified in any material respect and no material consent shall have been given, in each case, in a manner materially adverse to the Lenders, without the prior written consent of the Arrangers.
(f) The condition in Section 6.2(a) of the Merger Agreement (but only with respect to representations and warranties that are material to the interests of the Lenders, and only to the extent that AP Carib Holdings, Ltd. or Merger Sub has the right to terminate its obligations under the Merger Agreement as a result of a breach of such representations in the Merger Agreement) shall be satisfied, and the representations and warranties made in Sections 3.01(a) and (d), 3.02(a), 3.03, 3.10, 3.11, 3.17 and 3.19 hereof with respect to each Borrower and each Subsidiary Loan Party that is a Material Subsidiary shall be true and correct in all other related documentation material respects.
(without g) The Equity Contribution shall have been consummated.
(h) On the Closing Date, after giving effect to any amendmentthe Transactions and the other transactions contemplated hereby, waiver the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Notes, the Senior Unsecured Notes and/or the loans and other extensions of credit under the Interim Loan Agreement and (iii) other Indebtedness permitted pursuant to Section 6.01 (other than pursuant to clauses (i), (j), (k), (r), (s), (v)(i), (w), (bb), (dd) or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld(gg) thereof).
(i) The other Transactions Lenders shall have been consummated received (i) a customary solvency certificate signed by the Chief Financial Officer of the Borrower or (ii) an opinion from an independent investment bank or valuation firm of nationally recognized standing, in either case, confirming the solvency of the Borrower and its Subsidiaries on a manner consistent with consolidated basis after giving effect to the sources and uses shown Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(j) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document, and, except as agreed to by the Arrangers, the Borrower has complied with all obligations under the Fee Letter.
(k) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date.
(l) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 or, in the case of an L/C Credit Extension, the applicable L/C Issuer and the Administrative Agent shall have received a Letter of Credit Application as required by Section 2.05(b). For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or possession of the certificated securities (if any) evidencing the Borrower’s and the Subsidiary Loan Parties’ equity and the security agreement giving rise to the security interest) is not provided on the Closing Date, the provision of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be delivered after the Closing Date in accordance with Section 5.10(h).
Appears in 1 contract
Sources: Credit Agreement (TII Smart Solutions, Sociedad Anonima)
First Credit Event. On or prior to the Closing Date:.
(a) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement and each other Loan Document to be executed on or prior to the Closing Date, signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and such other applicable Loan Documents.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (ii) ▇▇▇▇▇▇▇▇, special ▇▇▇▇▇▇ & Finger, P.A. and (iii) other counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative Agenton Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying;
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ;
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law the terms and conditions of the Purchase Agreement and all other related documentation (Acquisition as set forth in the Acquisition Documents, without giving effect to any amendment, supplement, modification or waiver or other modification thereof which is materially adverse to the Lenders without the prior written consent of the Joint Lead Arrangers (which approval shall not approved by be unreasonably withheld, conditioned or delayed).
(f) The Equity Financing shall have been consummated.
(g) The Borrower shall have received gross cash proceeds of $510.0 million from the Initial Lendersissuance of the Senior Notes or from senior unsecured bridge term loans.
(h) All amounts due or outstanding in respect of the Existing Credit Facilities shall have been (or substantially with the closing under this Agreement shall be) paid in full, such approval not unreasonably to be withheld)all commitments in respect thereof terminated and all guarantees thereof and security therefor (if any) discharged and released, and the Administrative Agent shall have received a “pay-off” letter in respect thereof.
(i) The other Transactions Lenders shall have received the financial information referred to in Section 3.05 and in the case of the audited financial statements for the 2006 fiscal year, such financial statements shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders received no later than 20 days prior to the Closing Date.
(j) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Notes or senior unsecured bridge term loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(k) The Lenders shall have received a solvency certificate substantially in the form of Exhibit B and signed by the Chief Financial Officer of the Borrower.
(l) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(m) The Administrative Agent shall have received all insurance certificates satisfying the requirements of Section 5.02 of this Agreement. The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act to the extent requested not less than five Business Days prior to the Closing Date.
(n) the MLI Swap Agreement shall be in full force and effect in accordance with the terms thereof. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Noranda Aluminum Acquisition CORP)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include by electronic means transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local and specialist counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) if available from an official in the case of a corporationsuch jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (Dv) 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 Loan Party and Party,
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; , and
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (ivvii) such other documents as the Administrative Agent, Agent and the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida and/or the jurisdiction in which such Loan Parties Party is formed and existing and lien searches of any other office or jurisdiction in which the jurisdictions contemplated by the Perfection Certificates Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that that, to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than execution and delivery of the Collateral Agreement, the Subsidiary Guarantor Pledge Agreement and any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement, the registration or recording of the Vessel Mortgage in the appropriate ship registry or the delivery of stock certificates or other instruments representing Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in and the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior Security Document giving rise to the security interest therein) is not able to be provided on the Closing DateDate after the Borrower’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)5.10.
(e) The Lenders shall have received the financial statements and interim financial reports referred to in Section 3.05.
(f) The Administrative Agent Lenders shall have received copies of, or an insurance broker's or agent's a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit C and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Borrower confirming the solvency of the Borrower and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insuredconsolidated basis, in form and substance satisfactory each case, after giving effect to the Administrative AgentTransactions on the Closing Date.
(g) The Initial Lenders Agents shall be reasonably satisfied with have received all fees payable thereto or to any Arranger or Lender on or prior to the material terms of Closing Date and, to the Purchase Agreement and extent invoiced, all other material agreements amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, A▇▇▇▇▇▇ (Bermuda) Limited, A▇▇▇▇▇▇ Global, H▇▇▇▇ & J▇▇▇▇▇▇ and W▇▇▇▇▇ ▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be entered into in connection with reimbursed or paid by the Transactions, including Loan Parties hereunder or under any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationLoan Document.
(h) The Stock Purchases Administrative Agent and/or Collateral Agent (as appropriate) shall have been consummated or shall be consummated simultaneously received insurance certificates, endorsements, copies of cover notes and certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the initial Credit Event under requirements of Section 5.02 (including any such items also covered in clause (iv) of paragraph (k) of this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheldSection 4.02).
(i) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(j) [reserved].
(k) The Collateral Agent shall have received:
(i) evidence that the Vessel Mortgage has been duly executed and delivered by the Subsidiary Guarantor and duly registered in accordance with the laws of the Bahamas and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage and subsisting Lien securing the Obligations on the Mortgaged Vessel described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) a Transcript of Register issued by The Bahamas Maritime Authority stating that the Mortgaged Vessel is owned by the Subsidiary Guarantor and that there are of record no liens or other encumbrances on the Mortgaged Vessel except the Vessel Mortgage in favor of the Collateral Agent and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the Vessel Mortgage, to the effect that the Mortgaged Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the Mortgaged Vessel naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings the Loan Parties and the U.S. BorrowerParent Company, substantially to the effect set forth in Exhibit M form and (ii) local counsel substance reasonably satisfactory to the Administrative Agent, in each case Agent (A) dated the Closing Date, Date and (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially Lenders, in each case as of the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably requestClosing Date, and each of Holdings Loan Party and the U.S. Borrower Parent Company hereby instructs its instruct their counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Dateopinion.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan Party, (A) in the case of the formation documents of a corporationregistered entity, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability companyother constitutional documents, certified by the Secretary Secretary, Assistant Secretary, other senior officer, or Assistant Secretary the general partner, managing member or sole member, of each such Loan Party; and
(ii) a certificate of the Secretary Secretary, Assistant Secretary, Director, President or Assistant Secretary other senior officer or the general partner, managing member or sole member, of each Loan Party Party, in each case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws bylaws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan 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, Date,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and Party, and
(ED) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that .
(e) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions.
(f) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent that it is not practicable (w) for invoiced, all other amounts due and payable pursuant to the Loan Parties specified Documents on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be satisfied after reimbursed or paid by the Closing Date in accordance with Section 5.10(g)Loan Parties hereunder, under any Loan Document.
(fi) The representations and warranties set forth in the Loan Documents shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and except to the extent such representations and warranties are expressly qualified by materiality (in which case such representations and warranties shall be true and correct in all respects as of the applicable date) and (ii) no Default or Event of Default shall have occurred and be continuing on and as of the Closing Date.
(h) The Administrative Agent shall have received copies of, or an insurance broker's or agent's a certificate signed by a Responsible Officer of the Borrower as to coverage under, the insurance policies required by matters set forth in Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld4.02(g).
(i) The other Transactions Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. PATRIOT Act, that has been consummated reasonably requested by the Administrative Agent at least five (5) Business Days in advance of the Closing Date. To the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and any Lender requests, in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided written notice to the Lenders Borrower at least five (5) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower, each such Lender shall have received such Beneficial Ownership Certification at least three (3) days prior to the Closing Date (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this sentence shall be deemed to be satisfied with respect to such Lender).
(j) The Administrative Agent shall have received the financial statements referenced in Section 3.05(b) and Section 3.05(c) (it being understood the filing of any such financial statements with the SEC or in any public proxy statement shall satisfy the respective delivery requirements in this condition).
(k) The Administrative Agent (or its counsel) shall have received from the Borrower a signed copy of a promissory note evidencing the Loans substantially in the form of Exhibit G, to the extent requested by any Lender at least five (5) days in advance of the Closing Date.
(l) The Administrative Agent shall have received evidence that the insurance required by Section 5.02 is in effect, provided that endorsements shall be provided in the timeline set forth in Section 5.13.
(m) The Administrative Agent shall have received true and correct copies of all Material Contracts in effect on the Closing Date.
(n) The Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank L/C Issuer on the Closing Date, a favorable written opinion of (i) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special LLP, counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank L/C Issuer on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent organizational documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation, certificate of formation or limited liability agreement other equivalent organizational documents of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; above and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank Loan Documents delivered on the Closing Date may reasonably requestDate.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(h), the elements of the U.S. Borrower, dated Collateral Requirement required to be satisfied on the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment lien filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate, lien searches with the United States Patent and Trademark Office, United States Copyright Office and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that released concurrently with the closing of the Transactions on the Closing Date.
(e) All Indebtedness outstanding under the Concord Loan Agreement shall have been repaid in full.
(f) All of the First Mortgage Notes shall have been called for redemption, the redemption price therefor shall have been, or shall be substantially concurrently with the initial borrowing hereunder, deposited with the Trustee for the First Mortgage Notes and the First Mortgage Notes Indenture shall have been, or shall be substantially concurrently with the initial borrowing hereunder, defeased, and the Administrative Agent shall have received or shall substantially concurrently with the initial borrowing hereunder receive evidence of such defeasance.
(g) The Lenders shall have received a customary solvency certificate signed by the Chief Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(h) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent that it is not practicable (w) for invoiced, all other amounts due and payable pursuant to the Loan Parties specified Documents on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp) required to be satisfied after reimbursed or paid by the Closing Date in accordance with Section 5.10(g)Loan Parties hereunder or under any Loan Document.
(fi) The Administrative Agent shall have received copies ofall documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, or an insurance broker's or agent's certificate as to coverage underincluding without limitation, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
USA PATRIOT Act that has been requested not less than five (g5) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders Business Days prior to the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or PDF transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies (or facsimile or PDF copies) of the Guarantee and Collateral Agreement, the IP Security Agreements and any promissory notes requested, at least two Business Days prior to the Closing Date, by a Lender pursuant to Section 2.04(e) payable to each such requesting Lender and its registered assigns.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) the General Counsel of the Borrower, and (iii) each local counsel reasonably satisfactory to the Administrative Agentlisted on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders Lenders, and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its requests such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: (i) a copy of the certificate or articles of incorporation, partnership agreement certificate of formation or limited liability agreementother constitutive document, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar or, in each case, a comparable governmental official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Partyif available); (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (laws, or operating, management or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 board of Directors (directors, board of managers or equivalent members of other governing body) , as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Dateeffect, (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement other constitutive document of such Loan Party have not been amended since the date of the last amendment thereto disclosed 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 such Loan Party and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowercertificate, dated the Closing DateDate and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.024.01.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses (including the reasonable fees, disbursements and other charges of legal counsel) required to be reimbursed or paid by any Loan Party to the Administrative Agent or any Arranger incurred in connection with the Transactions.
(f) The Guarantee and Collateral Agreement shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in the Guarantee and Collateral Agreement.
(g) Each document (including any Uniform Commercial Code financing statements) required by the Security Documents or under law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Lenders and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Liens permitted under Section 6.02 other than Sections 6.02(b), 6.02(j), 6.02(l) (other than Indebtedness incurred pursuant to Section 6.02(l) expressly permitted to be secured on a pari passu basis with the Loans) and 6.02(r)), shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recordation. The Collateral Agent shall have received all Pledged Collateral required to be delivered to the Collateral Agent pursuant to the Guarantee and Collateral Agreement, together with undated proper instruments of assignment duly executed by the applicable Loan Party in blank and such other instruments or documents as the Collateral Agent may reasonably request.
(h) The Administrative Agent and the Collateral Agent shall have received a Perfection Certificates Certificate with respect to the Loan Parties dated the Closing Date and signed duly executed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and shall have received the results of a recent lien search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by states (or other jurisdictions) of formation of such Persons and, with respect to tax lien searches only, in which the chief executive office of each such Person is located, in each case as indicated on such Perfection Certificates and Certificate, together with copies of the financing statements (or similar documents) disclosed by such search search, and accompanied by evidence reasonably satisfactory to the Administrative Collateral Agent that the Liens indicated by in any such financing statements statement (or similar documentsdocument) are would be permitted by under Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement will be contemporaneously released or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)terminated.
(fi) The Administrative Agent shall have received copies a copy of, or an insurance broker's or agent's a certificate as to coverage under, the insurance policies required by Section 5.025.02 and the applicable provisions of the Security Documents, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" customary lender's ’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(gj) The Initial Lenders Administrative Agent shall be reasonably satisfied with have received a certificate from the material terms chief financial officer of the Purchase Agreement Borrower, in form and all other material agreements substance reasonably satisfactory to be entered into in connection with the Administrative Agent, to the effect that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Considerationare solvent.
(hk) The Stock Purchases Merger shall have been consummated and BATS shall have become a Wholly Owned Subsidiary of the Borrower. The Administrative Agent shall have received a copy of the Merger Agreement, certified by a Financial Officer or shall be consummated simultaneously other executive officer of the Borrower as being complete and correct together with all closing certificates, opinions and other closing documents delivered in satisfaction of the closing conditions set forth in the Merger Agreement.
(l) Prior to or, pursuant to arrangements reasonably satisfactory to the Administrative Agent, substantially contemporaneously with the initial funding of the Loans on the Closing Date, (i) the Repayment shall have occurred, (ii) all commitments under the Existing Credit Event Agreement shall have been terminated, (iii) all guarantees and Liens granted in respect of the Existing Credit Agreement shall have been released and (iv) all guarantees and Liens incurred by the Direct Edge and its subsidiaries (other than guarantees and Liens created by the Guarantee and Collateral Agreement) will be released. The Administrative Agent shall have received payoff and release letters with respect to the Existing Credit Agreement and the obligations and Liens (if any) relating thereto, in form and substance reasonably satisfactory to the Administrative Agent, and the conditions to effectiveness of such letters shall have been satisfied. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no indebtedness for borrowed money or preferred stock other than (a) Indebtedness incurred under this Agreement in accordance with applicable law and the Purchase Agreement (b) Indebtedness permitted under Section 6.01(a), 6.01(c), 6.01(f), 6.01(i), 6.01(k), 6.01(l), 6.01(m), 6.01(n), 6.01(o), and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld6.01(q).
(im) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders extent requested at least five days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Notwithstanding the foregoing, if the conditions relating to the receipt of Pledged Collateral set forth in clause (g) of this Section 4.02 are not satisfied as of the Closing Date such conditions shall not be a condition precedent to the effectiveness of this Agreement on the Closing Date and shall not be a condition to the funding of the Credit Event on the Closing Date, but shall be accomplished as promptly as practicable after the Closing Date and in any event within the period specified on Schedule 5.12 or such later date as the Administrative Agent may agree to in its sole discretion.
Appears in 1 contract
First Credit Event. On or prior to the Closing Restatement Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇O’Melveny & ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. Borrower, substantially in form and substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local and other special U.S. and/or foreign counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed in form and substance reasonably satisfactory to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(bc) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Restatement Effective Date.
(cd) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Restatement Effective Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, ,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Restatement Effective Date, ,
(C) that the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Restatement Effective Date may reasonably request.
request (d) The Administrative Agent shall have received including without limitation, tax identification numbers and addresses and a certificate Reaffirmation Agreement, substantially in the form of a Responsible Officer of the U.S. BorrowerExhibit J hereto, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) executed and (c) of Section 4.01 and paragraph (q) of this Section 4.02delivered by each Loan Party).
(e) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated simultaneously with or immediately following the closing under the Existing Credit Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents.
(g) SkyTerra shall own 50% of the Class A units of the Borrower and shall be the managing member of the Borrower, and the remaining Class A units of the Borrower shall be owned by HNS.
(h) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(i) The Lenders shall have received the financial statements referred to in Section 3.05.
(j) On the Restatement Effective Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(k) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower’s option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(l) All material governmental and third party approvals that were conditions to closing the Transactions under the Transaction Agreement shall have been obtained and in full force and effect in accordance with the Transaction Agreement.
(m) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Restatement Effective Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(n) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, certificates satisfying the insurance policies required by requirements of Section 5.02, each 5.02 of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agentthis Agreement.
(go) The Initial Lenders Admnistrative Agent shall be reasonably satisfied with the material terms satisified that as of the Purchase Agreement and all other material agreements Closing Date (after giving effect to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings Transactions and the Koyo Purchase Agreement, and financing thereof) the terms of the Stock ConsiderationBorrower had at least $100.0 million in available cash.
(hp) The Stock Purchases Administrative Agent shall have been consummated or received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended December 31, 2004 was not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be consummated simultaneously with delivered after the initial Credit Event under this Agreement Restatement Effective Date in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Section 5.10.
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders prior to the Closing Date.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of the Loan Parties, initial Issuing Bank and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (ix) ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to (y) Walkers, special Cayman Islands counsel for the effect set forth in Exhibit M Loan Parties and (iiz) local ▇▇▇▇▇ Law LP, special Anguilla counsel reasonably satisfactory to for the Administrative AgentLoan Parties, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent, the Lenders and each Issuing Bank on the Closing Date, Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received received, in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: Party:
(i) a copy of the certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, certificate of formation, exempted limited partnership agreement agreement, or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) if such certification is not available in the applicable jurisdiction, otherwise certified by the Secretary or Assistant Secretary or similar officer of such Loan Party or (in the case of any Loan Party that is a limited partnership) its general partner, as applicable,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (other than with respect to Apollo Principal Holdings XI, LLC) as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (iiiii) a certificate of the Secretary or Assistant Secretary or similar officer of each such Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, dated the Closing Date and certifying certifying:
(A1) that attached thereto is a true and complete copy of the by-laws (or memorandum and articles of association, partnership agreement, exempted limited partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (B2) below, ,
(B2) that attached thereto is a true and complete copy of resolutions (or equivalent documentation) duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions (or equivalent documentation) have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C3) that the certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, articles of incorporation, certificate of formation, exempted limited partnership agreement or limited liability agreement other equivalent organizational documents of such Loan Party have has not been amended since the date of the last amendment thereto as disclosed pursuant to clause (i) above,
(D4) as to the incumbency and specimen signature of each officer of the Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and Party, and
(E5) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated all fees payable thereto or to any Lender or Joint Lead Arranger on or prior to the Closing Date and, to the extent invoiced, all other amounts due and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect payable pursuant to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (Documents on or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after including, to the extent invoiced at least three Business Days prior to the Closing Date in accordance with Section 5.10(g).Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document;
(fe) The Administrative Agent shall have received copies ofa certificate of a Financial Officer of the Borrower or its general partner setting forth reasonably detailed calculations showing the EBITDA of the Group Members for the four fiscal quarters ending June 30, 2022;
(f) All principal accrued and unpaid interest, and other amounts then due and owing under the Existing Credit Agreement shall have been or shall substantially contemporaneously be, paid in full and all commitments thereunder shall have been, or an insurance broker's or agent's certificate as to coverage undershall substantially contemporaneously be, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.terminated;
(g) The Initial Lenders shall be reasonably satisfied with To the material terms of extent the Purchase Agreement and all other material agreements to be entered into in connection with Borrower qualifies as a “legal entity customer” under the TransactionsBeneficial Ownership Regulation, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders at least three Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least four Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (g) shall be deemed to be satisfied). For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such ▇▇▇▇▇▇’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of the Loan Parties, initial Issuing Bank and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (ix) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to (y) Walkers, special Cayman Islands counsel for the effect set forth in Exhibit M Loan Parties and (iiz) local ▇▇▇▇▇ Law LP, special Anguilla counsel reasonably satisfactory to for the Administrative AgentLoan Parties, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent, the Lenders and each Issuing Bank on the Closing Date, Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received received, in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: Party:
(i) a copy of the certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, certificate of formation, exempted limited partnership agreement agreement, or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) if such certification is not available in the applicable jurisdiction, otherwise certified by the Secretary or Assistant Secretary or similar officer of such Loan Party or (in the case of any Loan Party that is a limited partnership) its general partner, as applicable,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (iiiii) a certificate of the Secretary or Assistant Secretary or similar officer of each such Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, dated the Closing Date and certifying certifying:
(A1) that attached thereto is a true and complete copy of the by-laws (or memorandum and articles of association, partnership agreement, exempted limited partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (B2) below, ,
(B2) that attached thereto is a true and complete copy of resolutions (or equivalent documentation) duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions (or equivalent documentation) have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C3) that the certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, articles of incorporation, certificate of formation, exempted limited partnership agreement or limited liability agreement other equivalent organizational documents of such Loan Party have has not been amended since the date of the last amendment thereto as disclosed pursuant to clause (i) above,
(D4) as to the incumbency and specimen signature of each officer of the Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and Party, and
(E5) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated all fees payable thereto or to any Lender or Joint Lead Arranger on or prior to the Closing Date and, to the extent invoiced, all other amounts due and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect payable pursuant to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (Documents on or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after including, to the extent invoiced at least three Business Days prior to the Closing Date in accordance with Section 5.10(g).Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document;
(fe) The Administrative Agent shall have received copies ofa certificate of a Financial Officer of the Borrower or its general partner setting forth reasonably detailed calculations showing the EBITDA of the Group Members for the four fiscal quarters ending March 31, or an insurance broker's or agent's certificate as to coverage under, 2018. For purposes of determining compliance with the insurance policies required by conditions specified in this Section 5.024.02, each of which policies Lender shall be endorsed deemed to have consented to, approved or otherwise amended accepted or to include a "standard" be satisfied with each document or "New York" lender's loss payable endorsement and other matter required thereunder to name the Collateral Agent as additional insured, in form and substance be consented to or approved by or acceptable or satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms unless an officer of the Purchase Agreement and all other material agreements to be entered into in connection with Administrative Agent responsible for the Transactions, including any stockholder agreement to be entered into between transactions contemplated by the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Loan Documents shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, received notice from such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders Lender prior to the Closing DateDate specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇O’Melveny & ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law the terms and conditions of the Acquisition as set forth in the Purchase Agreement and all other related documentation (Documents, without giving effect to any material amendment, supplement, modification or waiver or other modification thereof which is materially adverse to the Lenders not approved by without the Initial Lendersprior written consent of the Administrative Agent.
(f) The Equity Financing shall have been consummated.
(g) The Borrower shall have received gross cash proceeds of (i) 600.0 million from the issuance of the Second Lien Notes and (ii) $300.0 million from the incurrence of the issuance of the Senior Subordinated Notes.
(h) The terms and conditions of the Second Lien Notes and the Senior Subordinated Notes (including terms and conditions relating to the interest rate, such approval not unreasonably fees, amortization, maturity, subordination (in the case of the Senior Subordinated Notes), security (in the case of the Second Lien Notes), covenants, defaults and remedies) shall be as set forth in the Second Lien Notes Offering Memorandum and the Senior Subordinated Notes Offering Memorandum or otherwise reasonably satisfactory to be withheld)the Administrative Agent.
(i) The other Transactions Lenders shall have been consummated received the financial statements referred to in Section 3.05.
(j) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrower and the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Notes, (iii) the Senior Subordinated Notes, and (iv) other Indebtedness permitted pursuant to Section 6.01.
(k) The Lenders shall have received a manner consistent with solvency certificate substantially in the sources form of Exhibit B and uses shown signed by the Chief Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(l) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(m) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(n) The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On Each Lender shall make the Credit Extension to be made by it on the Closing DateDate subject only to the following conditions precedent, unless otherwise waived by the Administrative Agent and the Joint Lead Arrangers:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Administrative Agent and, if applicable, the relevant L/C Issuer or the relevant Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(c) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateL/C Issuer, a favorable written an opinion of (i) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) from each local counsel reasonably satisfactory to for the Administrative AgentLoan Parties listed on Schedule 4.02(c), in each case (A) case, dated the Closing Date, (B) Date and addressed to each Issuing Bank on the Closing DateL/C Issuer, the Administrative Agent, the Collateral Agent and the Lenders Lenders, in each case in form and (C) substantially substance customary for senior secured credit facilities in the form transactions of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinionsthis kind.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(cd) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: received
(i) a copy of the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreementorganization, including all amendments thereto, of each Loan Party, (A) in the case of a corporationcertified, certified if applicable, as of a recent date by the Secretary of State (or other similar official) Governmental Authority of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionwhere relevant) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; Governmental Authority and
(ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws or operating (or partnership agreement, limited liability company company) agreement or other equivalent governing documents) of such Loan 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, Date,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, effect,
(C) that the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreement organization of such Loan Party have not been amended since the date of the last amendment thereto disclosed 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 such Loan Party and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(di) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search (x) searches of the Uniform Commercial Code filings (or equivalentequivalent filings) filings and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions contemplated by of formation of such Person and with respect to such other locations and names listed on the Perfection Certificates and Certificate, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory (ii) the Security Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates, if any, representing the Pledged Equity (as defined in the Security Agreement) of the Borrower and the Domestic Subsidiaries accompanied by undated stock powers executed in blank and (y) subject to Section 6.13, documents and instruments to be recorded or filed that the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) may deem reasonably necessary to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) [Reserved].
(g) [Reserved].
(h) The Administrative Agent shall have received copies of, or an insurance broker's or agent's a certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with Arrangers, dated the material terms of Closing Date and signed by the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders Chief Financial Officer of Holdings and the Koyo Purchase AgreementBorrower, certifying that Holdings, the Borrower and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without their Subsidiaries, on a consolidated basis after giving effect to any amendmentthe Transactions on the Closing Date, waiver or other modification adverse to are Solvent as of the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Closing Date.
(i) The other Transactions On the Closing Date, the representations and warranties made by the Loan Parties in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects).
(j) [Reserved].
(k) Since December 31, 2018, there shall not have occurred a Material Adverse Effect or any changes, events, circumstances, occurrences, effects or developments that would reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect.
(l) All fees required to be paid on the Closing Date and reasonable out-of-pocket expenses required to be paid on the Closing Date shall have been consummated paid.
(m) Immediately following the Transactions, neither Holdings nor any of its subsidiaries will have any Indebtedness for borrowed money other than (i) the Obligations, (ii) Indebtedness permitted under Section 7.03(b) and (iii) preferred stock of Holdings which must be treated as equity for rating agency and GAAP purposes and otherwise on terms reasonably satisfactory to the Arrangers. The Administrative Agent shall have received reasonably satisfactory evidence of repayment (or in a manner consistent with the sources case of the Existing Second Lien Notes, satisfaction and uses shown discharge upon irrevocable deposit into escrow of sufficient proceeds from the Term Loans funded on the pro forma capitalization dated February 13Closing Date) of all Indebtedness (including all Indebtedness under the Existing Credit Agreement, 2003, provided Existing Second Lien Notes and the Existing Third Lien Credit Agreement) to be repaid on the Closing Date and the discharge (or the making of arrangements for discharge) of all Liens other than Liens permitted pursuant to Section 7.01.
(n) [Reserved].
(o) The Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Administrative Agent or the Lenders under applicable “know your customer” and Anti-Terrorism Laws, including without limitation the USA PATRIOT Act; provided that the Administrative Agent and the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 3 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law. At least 5 Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(p) The Administrative Agent shall have received the Audited Financial Statements.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or PDF transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies (or facsimile or PDF copies) of the Guarantee and Collateral Agreement, the IP Security Agreements and any promissory notes requested, at least two Business Days prior to the Closing Date, by a Lender pursuant to Section 2.04(e) payable to each such requesting Lender and its registered assigns.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) the General Counsel of the Borrower, and (iii) each local counsel reasonably satisfactory to the Administrative Agentlisted on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders Lenders, and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its requests such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: (i) a copy of the certificate or articles of incorporation, partnership agreement certificate of formation or limited liability agreementother constitutive document, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar or, in each case, a comparable governmental official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Partyif available); (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (laws, or operating, management or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 board of Directors (directors, board of managers or equivalent members of other governing body) , as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Dateeffect, (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement other constitutive document of such Loan Party have not been amended since the date of the last amendment thereto disclosed 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 such Loan Party and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowercertificate, dated the Closing DateDate and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.024.01.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses (including the reasonable fees, disbursements and other charges of legal counsel) required to be reimbursed or paid by any Loan Party to the Administrative Agent or any Arranger incurred in connection with the Transactions.
(f) The Guarantee and Collateral Agreement shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in the Guarantee and Collateral Agreement.
(g) Each document (including any Uniform Commercial Code financing statements) required by the Security Documents or under law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Lenders and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Liens permitted under Section 6.02 other than Sections 6.02(b), 6.02(j), 6.02(l) (other than Indebtedness incurred pursuant to Section 6.02(l) expressly permitted to be secured on a pari passu basis with the Loans) and 6.02(r)), shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recordation. The Collateral Agent shall have received all Pledged Collateral required to be delivered to the Collateral Agent pursuant to the Guarantee and Collateral Agreement, together with undated proper instruments of assignment duly executed by the applicable Loan Party in blank and such other instruments or documents as the Collateral Agent may reasonably request.
(h) The Administrative Agent and the Collateral Agent shall have received a Perfection Certificates Certificate with respect to the Loan Parties dated the Closing Date and signed duly executed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and shall have received the results of a recent lien search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by states (or other jurisdictions) of formation of such Persons and, with respect to tax lien searches only, in which the chief executive office of each such Person is located, in each case as indicated on such Perfection Certificates and Certificate, together with copies of the financing statements (or similar documents) disclosed by such search search, and accompanied by evidence reasonably satisfactory to the Administrative Collateral Agent that the Liens indicated by in any such financing statements statement (or similar documentsdocument) are would be permitted by under Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement will be contemporaneously released or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)terminated.
(fi) The Administrative Agent shall have received copies a copy of, or an insurance broker's or agent's a certificate as to coverage under, the insurance policies required by Section 5.025.02 and the applicable provisions of the Security Documents, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" customary lender's ’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(gj) The Initial Lenders Administrative Agent shall be reasonably satisfied with have received a certificate from the material terms chief financial officer of the Purchase Agreement Borrower, in form and all other material agreements substance reasonably satisfactory to be entered into in connection with the Administrative Agent, to the effect that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Considerationare solvent.
(hk) The Stock Purchases Merger shall have been consummated and BATS shall have become a Wholly OwnedWholly-Owned Subsidiary of the Borrower. The Administrative Agent shall have received a copy of the Merger Agreement, certified by a Financial Officer or shall be consummated simultaneously other executive officer of the Borrower as being complete and correct together with all closing certificates, opinions and other closing documents delivered in satisfaction of the closing conditions set forth in the Merger Agreement.
(l) Prior to or, pursuant to arrangements reasonably satisfactory to the Administrative Agent, substantially contemporaneously with the initial funding of the Loans on the Closing Date, (i) the Repayment shall have occurred, (ii) all commitments under the Existing Credit Event Agreement shall have been terminated, (iii) all guarantees and Liens granted in respect of the Existing Credit Agreement shall have been released and (iv) all guarantees and Liens incurred by the Direct Edge and its subsidiaries (other than guarantees and Liens created by the Guarantee and Collateral Agreement) will be released. The Administrative Agent shall have received payoff and release letters with respect to the Existing Credit Agreement and the obligations and Liens (if any) relating thereto, in form and substance reasonably satisfactory to the Administrative Agent, and the conditions to effectiveness of such letters shall have been satisfied. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no indebtedness for borrowed money or preferred stock other than (a) Indebtedness incurred under this Agreement in accordance with applicable law and the Purchase Agreement (b) Indebtedness permitted under Section 6.01(a), 6.01(c), 6.01(f), 6.01(i), 6.01(k), 6.01(l), 6.01(m), 6.01(n), 6.01(o), and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld6.01(q).
(im) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders extent requested at least five days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Notwithstanding the foregoing, if the conditions relating to the receipt of Pledged Collateral set forth in clause (g) of this Section 4.02 are not satisfied as of the Closing Date such conditions shall not be a condition precedent to the effectiveness of this Agreement on the Closing Date and shall not be a condition to the funding of the Credit Event on the Closing Date, but shall be accomplished as promptly as practicable after the Closing Date and in any event within the period specified on Schedule 5.12 or such later date as the Administrative Agent may agree to in its sole discretion.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:.
(a) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement and each other Loan Document to be executed on or prior to the Closing Date, signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and such other applicable Loan Documents.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, itself and the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (ii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., (iii) ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for Holdings and Esq., the U.S. General Counsel to the Borrower, substantially to the effect and (iv) other counsel set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative Agenton Schedule 5.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying;
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ;
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party; and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than (i) any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, or the delivery of stock certificates, (ii) the security agreement giving rise to the security interest therein and (iii) results of recent lien searches in each relevant jurisdiction with respect to the Loan Parties and their Subsidiaries, and such search results shall reveal no liens on any assets of the Companies and their subsidiaries except for Permitted Liens and liens to be discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent) that is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 5.02(d)), and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) The Lenders shall have received (i) a solvency certificate substantially in the form of Exhibit B and signed by the Chief Financial Officer of the Collateral Borrower and Guarantee Requirement (ii) the Administrative Agent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company addressed to the Administrative Agent and the Lenders from time to time party to this Agreement, in each case reasonably satisfactory in form and substance to the Administrative Agent and the Joint Lead Arrangers, demonstrating the financial condition and Solvency of Holdings, the Borrower and its Subsidiaries on a consolidated basis after giving effect to the incurrence of the Loans, all credit extensions under the ABL Credit Agreement to occur on the Closing Date, the payment of the Special Dividend, the consummation of the Refinancing and all other elements of the Transaction to occur on the Closing Date and the incurrence of all Indebtedness related thereto.
(f) The ABL Credit Agreement shall be in full force and effect, all conditions to funding thereunder (other than delivery of a notice of borrowing) shall be satisfied, on the Closing Date and the Borrower shall have obtained $250,000,000 of commitments thereunder.
(g) All amounts due or outstanding in respect of the Existing Credit Agreement shall have been (or substantially with the closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof discharged and released, and the Administrative Agent shall have received a “pay-off” letter in respect thereof.
(h) The Lenders shall have received the financial information referred to intercompany Indebtednessin Section 4.05.
(i) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, (x) for Holdings shall have outstanding no Indebtedness and the Foreign Borrower and its Subsidiaries set forth on Schedule 5.10(gshall have outstanding no Indebtedness other than (i) to satisfy any the Loans and other extensions of paragraphs (a)credit under this Agreement, (e)ii) the extension of credit under the ABL Credit Agreement, (fiii) the Senior Notes and (giv) of the Collateral and Guarantee Requirementother Indebtedness permitted pursuant to Section 7.01.
(j) Since December 31, (y) to perfect any security interest 2010 there has been no event, development or circumstance that, individually or in the Equity Interests aggregate, has, had or assets of would reasonably be expected to have a Foreign Subsidiary set forth Material Adverse Effect.
(k) All fees and expenses due and payable on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements pursuant to the Engagement Letter, the Administrative Agent Fee Letter and the Fee Letter or as may otherwise be agreed between the Company and the Arrangers shall have been paid (which amounts, at the option of the Company, may be satisfied after offset against the Closing Date in accordance with Section 5.10(gproceeds of the Facilities), including, to the extent invoiced, reimbursement or payment of all reasonable out of pocket expenses (including reasonable fees, charges and disbursements of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(fl) The Administrative Agent shall have received copies ofall insurance certificates satisfying the requirements of Section 6.02 of this Agreement. The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, or an insurance broker's or agent's certificate as to coverage underincluding without limitation, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory USA PATRIOT Act to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders extent requested not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders less than five Business Days prior to the Closing Date.
(m) The Schedule to the ISDA Master Agreement dated January 9, 2012 between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services, Inc. and Noranda Aluminum, Inc. shall have been amended and restated and be on terms reasonably satisfactory to the Administrative Agent, and the Guarantee and Collateral Agreement, dated January 9, 2012, among Holdings, the Borrower, each of its subsidiaries identified therein, each secured swap party that is a party thereto from time to time, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as collateral agent, shall have been terminated and the Liens granted thereunder released.
(n) The Term B Facility shall have received a debt rating from each of ▇▇▇▇▇’▇ and S&P. For purposes of determining compliance with the conditions specified in this Section 5.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank L/C Issuer on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank L/C Issuer on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; );
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party; and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(c), the elements of the U.S. Borrower, dated Collateral Requirement required to be satisfied on the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment lien filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and lien searches with the United States Patent and Trademark Office and United States Copyright Office and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to released concurrently with the extent that it is not practicable (w) for closing of the Loan Parties specified Transactions on Schedule 5.10(g) to satisfy paragraph the Closing Date.
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Merger shall have been consummated simultaneously or shall be consummated simultaneously substantively concurrent with the initial Credit Event closing under this Agreement in accordance with applicable law and the Purchase Merger Agreement, and no provision of the Merger Agreement and all other related documentation (without giving effect to shall have been amended, waived or otherwise modified in any amendment, waiver or other modification respect which is materially adverse to the Lenders not approved by interests of the Initial Lenders, such approval not unreasonably without the prior written consent of the Administrative Agent (it is understood and agreed that any (i) reduction in the purchase price, (ii) change to the definition of Material Adverse Effect (as defined in the Merger Agreement) or the related definitions therein or (iii) material increase in indebtedness permitted to be withheldoutstanding under the Merger Agreement, in the case of each of clauses (i), (ii) and (iii), shall be material and adverse to the Lenders).
(f) The condition in Section 6.2(a) of the Merger Agreement (but only with respect to representations and warranties that are material to the interests of the Lenders, and only to the extent that Holdings has the right to terminate its obligations under the Merger Agreement as a result of a breach of such representations in the Merger Agreement) shall be satisfied, and the representations and warranties made in Sections 3.01(a), (b) and (d), 3.02(a), 3.03, 3.10, 3.11, 3.17 and 3.19 hereof with respect to the Borrower and each Subsidiary Loan Party that is a Material Subsidiary shall be true and correct in all material respects.
(g) The Equity Contribution shall have been consummated and, to the extent any of the Equity Contribution is in the form of preferred Equity Interests, the terms of such preferred Equity Interests shall be reasonably satisfactory to the Joint-Lead Arrangers.
(h) The Borrower shall have received not less than $600,000,000 in aggregate gross cash proceeds from the issuance of the Secured Notes.
(i) The On the Closing Date, after giving effect to the Transactions and the other Transactions transactions contemplated hereby, the Borrower and its Subsidiaries shall have been consummated in outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Secured Notes and (iii) other Indebtedness permitted pursuant to (A) Section 6.01 hereof, and (B) the Merger Agreement.
(j) The Lenders shall have received a manner consistent with solvency certificate signed by the sources Chief Financial Officer of the Borrower, confirming the solvency of the Borrower and uses shown its Subsidiaries on a consolidated basis after giving effect to the Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(k) The Agents shall have received all fees payable thereto or to any Lender required to be paid on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(l) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date.
(m) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 or, in the case of an L/C Credit Extension, the applicable L/C Issuer and the Administrative Agent shall have received a Letter of Credit Application as required by Section 2.05(b).
(n) All amounts due or outstanding in respect of the Existing Credit Agreement shall have been (or substantially simultaneously with the Closing Date) paid in full, all commitments in respect thereof terminated and all guarantees thereof discharged and released.
(o) The Administrative Agent shall have received a certificate signed by the Chief Financial Officer of the Borrower, in form and substance reasonably satisfactory to the Joint-Lead Arrangers, certifying that the Total Leverage Ratio of the Borrower and its Subsidiaries calculated as of the Closing Date giving effect to the Transactions and utilizing EBITDAR for the four most recent Fiscal Quarters ended May 17, 2010 is not greater than 5.5 to 1.0.
(p) The Administrative Agent shall have received a counterpart of the Intercreditor Agreement signed by each party thereto.
(q) The Joint-Lead Arrangers shall have received the Pro Forma Financial Statements. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything herein to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement or possession of the certificated securities (if any) evidencing the Borrower’s and the Subsidiary Loan Parties’ Equity Interest and the security agreement giving rise to the security interest) is not provided on the Closing Date, the provision of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Facilities on the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (Aeroways, LLC)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank L/C Issuer on the Closing Date, a favorable written opinion of (i) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special LLP, counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local or foreign counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank L/C Issuer on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent organizational documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation, certificate of formation or limited liability agreement other equivalent organizational documents of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(h), the elements of the U.S. Borrower, dated Collateral Requirement required to be satisfied on the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment lien filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate, lien searches with the United States Patent and Trademark Office, United States Copyright Office and the Trademark Division of the Puerto Rico State Department and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that released concurrently with the closing of the Transactions on the Closing Date.
(e) The Evertec IPO shall have been, or shall be substantially concurrently with the initial borrowing hereunder, consummated, and the net cash proceeds thereof to Evertec shall have been, or shall be substantially concurrently with the initial borrowing hereunder, contributed to Holdings and then by Holdings to the Borrower for the purposes specified in Section 3.12.
(f) All Indebtedness under the Existing Credit Agreement shall have been, or shall be substantially concurrently with the initial borrowing hereunder, repaid and all commitments thereunder terminated, and the Administrative Agent shall have received a customary payoff letter evidencing such repayment and termination. All of the Senior Unsecured Notes shall have been called for redemption, the redemption price therefor shall have been, or shall be substantially concurrently with the initial borrowing hereunder, deposited with the Trustee for the Senior Unsecured Notes and the Senior Unsecured Notes Indenture shall have been, or shall be substantially concurrently with the initial borrowing hereunder, discharged, and the Administrative Agent shall have received or shall substantially concurrently with the initial borrowing hereunder receive evidence of such discharge.
(g) The Lenders shall have received a customary solvency certificate signed by the Chief Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(h) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent that it is not practicable (w) for invoiced, all other amounts due and payable pursuant to the Loan Parties specified Documents on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(i) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such requirements Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be satisfied perfected by the filing of a UCC financing statement or possession of the certificated securities (if any) evidencing the Borrower’s and the Subsidiary Loan Parties’ equity and the security agreement giving rise to the security interest) is not provided on the Closing Date after the Borrower’s and each Subsidiary Loan Party’s use of commercially reasonable efforts to do so, the provision of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be delivered after the Closing Date in accordance with Section 5.10(g5.10(h).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders prior to the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially as to the effect set forth in Exhibit M matters of New York law and (ii) local counsel ▇▇▇▇▇ ▇▇▇▇▇ L.L.P as to matters of Texas law, in each case, in form and substance reasonably satisfactory to the Administrative Agent, in each case Agent (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and, where applicable, each Loan Party and each of Holdings and the U.S. Borrower Finance Party hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident ; provided that, if any of the above opinions is not required to this Agreement, the borrowings and extensions of credit hereunder and the other cover Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank being entered into on the Closing Date, such opinion may instead be provided pursuant to Section 5.12.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official, including a public notary or, where customary practice in any relevant jurisdiction, by an officer or director of such Loan Party) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) ), or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary an officer of each Loan Party Party, in each case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the executiona specified person or persons to execute, delivery deliver and performance perform of the Loan Documents to which such person Loan Party is a party (or at least the Loan Documents to which such Loan Party is a party on the Closing Date) and any certificate, notice or document related thereto and, in the case of a any Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement (or other equivalent governing documents) of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(d) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and, if applicable, be in proper form for filing or be evidenced in the shareholder register.
(Ee) as The Refinancing shall have been consummated or shall be consummated substantially contemporaneously with the initial Credit Event hereunder.
(f) The Lenders shall have received the financial statements referred to in Section 3.05.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit B and signed by the chief financial officer or another Responsible Officer of Holdings confirming the solvency of Holdings, the Borrowers and their Restricted Subsidiaries on a consolidated basis after giving effect to the absence of Transactions.
(h) There has not been any pending proceeding for Company Material Adverse Effect, after giving effect to the dissolution Transactions, taken as a whole, since December 31, 2011.
(i) The Agents shall have received all fees payable thereto or liquidation of such Loan Party orto any Lender on or prior to the Closing Date and, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as extent invoiced 3 Business Days prior to the incumbency Closing Date, all other amounts due and specimen signature of the Secretary or Assistant Secretary executing the certificate payable pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank Loan Documents on or prior to the Closing Date may reasonably requestDate, including, to the extent invoiced 3 Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(dj) The Administrative Agent shall have received a certificate of signed by a Responsible Officer of each of Holdings and the U.S. Borrower, dated Lead Borrower as to the Closing Date, confirming compliance with the conditions precedent matters set forth in paragraphs clauses (be), (h) and (c) of Section 4.01 and paragraph (ql)(ii) of this Section 4.02.
(ek) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates perfection certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrowereach Loan Party, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(fl) The (i) Specified Acquisition Agreement Representations and (ii) the Specified Representations shall be true and correct in all material respects.
(m) The Administrative Agent shall have received copies ofthe results of recent UCC Lien and judgment searches with respect to each Loan Party to the extent reasonably required by the Administrative Agent, and such results shall reveal no material judgments and no Liens on any of the assets of the Loan Parties except for Permitted Liens or an insurance broker's Liens discharged on or agent's certificate as prior to coverage underthe Closing Date.
(n) The Lead Borrower shall have duly authorized, executed and delivered the Borrowing Base Certificate on or prior to the Closing Date. On or prior to the Closing Date, the insurance policies required by Section 5.02Borrowers shall have provided to the Administrative Agent (i) an appraisal of the Inventory of each Borrower and their respective Subsidiaries and (ii) the results of a field examination of the Inventory and Accounts and related assets and liabilities of each Borrower and their respective Subsidiaries and, in each case, the results of which policies such appraisal and field examination shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insuredin form, in form scope and substance reasonably satisfactory to the Administrative Agent.
(go) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Administrative Agent shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders received 5 days prior to the Closing Date (or such later date that the Administrative Agent shall reasonably agree) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA Patriot, for each of Holdings and each Borrower and any other Loan Party that the Administrative Agent has reasonably requested at least 10 days in advance of the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (TPC Group LLC)
First Credit Event. On the Closing Date:
(a) This Agreement and each other Closing Date Loan Document shall be in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent, each Joint Lead Arranger and each Lender and shall have been duly executed by the parties thereto and the Administrative Agent (or its counsel) shall have received from each party thereto either (a) a counterpart of this Agreement and each other Loan Document signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement and each other Loan Document) that such party has signed a counterpart of this Agreement and each other Closing Date Loan Document.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special Oklahoma counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative AgentLoan Parties, in each case case, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Loan Party hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreementcertificate of formation or other relevant constitutional documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, each certified as of a recent date by the Secretary secretary of State state (or other similar official) of the jurisdiction state of its such Person’s organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary the secretary of State state (or other similar official) or (B) in of the case state of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ’s organization;
(ii) a certificate of the Secretary or Assistant Secretary a Responsible Officer of each Loan Party Party, to be dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, agreement or limited liability company agreement or other equivalent governing documents) of such Loan 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 board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Loan Party is a party and, in the case of a Borrowerif applicable, the borrowings hereunderhereunder and the granting of the Liens contemplated to be granted by each Loan Party under the Security Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, effect,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement certificate of formation, as applicable, of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, ,
(D) as to the incumbency and specimen signature of each officer officer, member or partner (as applicable) of such Person executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer Responsible Officer of each Loan Party as to the incumbency and specimen signature of the Secretary or Assistant Secretary Responsible Officer executing the certificate pursuant to clause (ii) above (which certificate may be included in the certificate delivered pursuant to clause (ii) above); and and
(iv) such other customary corporate (or equivalent) documents with respect to any Loan Party as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request.
(d) The Administrative Agent (i) A certificate signed by a Responsible Officer of each Loan Party certifying that as of the Closing Date, and immediately after giving effect to the Initial Merger and the Loans and any other extensions of credit under this Agreement requested to be made on such date, the representations and warranties made by such Loan Party are true and correct in all material respect (except that such materiality qualifier shall have received not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) except for representations and warranties that expressly refer to an earlier date which are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date and (ii) a certificate of the Borrower signed by a Responsible Officer of the U.S. Borrower, dated Borrower certifying that as of the Closing Date, confirming compliance with and after giving effect to the conditions precedent set forth in paragraphs (b) Initial Merger and (c) the Loans and any other extensions of Section 4.01 credit under this Agreement requested to be made on such date and paragraph (q) the application of this Section 4.02the proceeds therefrom, no Default or Event of Default has occurred and is continuing or will have occurred and be continuing.
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of tax and judgment lien searches and a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided .
(f) After giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit E and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and of the Borrower and its Subsidiaries on a consolidated basis, in each case, after giving effect to the Transactions.
(h) There shall not have been, since December 31, 2015, any event or circumstance that has had, or would reasonably be expected to have, a Material Adverse Effect.
(i) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent that it is not practicable (w) for invoiced, all other amounts due and payable pursuant to the Loan Parties specified Documents on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, including, to the extent invoiced on or before two (2) Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and local counsel in any jurisdiction that the Administrative Agent deems relevant in respect of the transactions contemplated under this Agreement) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document. All such requirements may amounts, at the election of the Borrower, will be satisfied after paid with proceeds of the Loans made on the Closing Date and, to the extent such election is made, will be reflected in accordance with Section 5.10(g)the funding instructions given by the Borrower to the Administrative Agent on or before the Closing Date.
(fj) The Initial Merger shall have been consummated substantially contemporaneously with the effectiveness of this Agreement on the terms and conditions set forth in the Initial Merger Agreement.
(k) The Administrative Agent shall have received copies ofevidence reasonably satisfactory to it that all commitments under the RRMS Credit Agreement have been or concurrently with the Closing Date are being terminated, all Liens securing obligations under the Loan Documents (as defined in the RRMS Credit Agreement) have been or an insurance broker's concurrently with the Closing Date are being released and all amounts outstanding thereunder have been (or agent's will be with the proceeds of the Loans on Closing Date) paid in full.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to coverage underthe matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02.
(m) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions, and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain or prevent the Transactions and copies of all such approvals shall have been delivered to the Lenders.
(n) At least five (5) Business Days prior to the Closing Date, the insurance policies required by Section 5.02Administrative Agent shall have received from the Borrower a financial model, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent. The model shall include the calculation of EBITDA, the Interest Coverage Ratio and the Leverage Ratio through the projection period.
(go) The Initial Lenders Administrative Agent shall be reasonably satisfied with the material terms have received as of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
Closing Date (i) The other Transactions shall have been consummated in a manner consistent with audited annual consolidated financial statements of each of the sources Borrower and uses shown on RRMS for the pro forma capitalization dated February 13, 2003, provided to the Lenders last two (2) fiscal years ending at least one hundred (100) days prior to the Closing Date, (ii) for fiscal periods after the end of the last such year, unaudited consolidated quarterly financial statements of each of the Borrower and RRMS for each fiscal quarter ending at least fifty (50) days prior to the Closing Date and (iii) consolidated balance sheets of each of the Borrower and RRMS and related statements of operations for the year ended December 31, 2015 and the quarter ended March 31, 2016 and June 30, 2016. The Administrative Agent shall have received correct and complete copies of the pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 2016, prepared after giving effect to the Transactions and the other transactions contemplated hereby and by the other Loan Documents to occur on the Closing Date (it being agreed that the condition in this sentence has been satisfied by the filing on Form S-4 by the Borrower).
(p) The Administrative Agent and each Lender shall have received at least five (5) Business Days prior to the Closing Date all documentation and other written information requested by the Administrative Agent and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(q) Except with respect to Mortgaged Property, the Collateral Agent shall have been granted on the Closing Date, for the benefit of the Secured Parties, first priority perfected Liens on the Collateral (subject only to Permitted Liens). The Pledged Collateral shall have been duly and validly pledged under the Collateral Agreement to the Collateral Agent, for the benefit of the Secured Parties, and certificates representing the Pledged Collateral, accompanied by instruments of transfer indorsed in blank, shall be in the actual possession of the Collateral Agent.
(r) The Collateral Agent shall have received (A) appropriately completed UCC financing statements (Form UCC l) (including transmitting utility filings, as appropriate), naming the applicable Loan Parties as debtors and the Collateral Agent as secured party, in form appropriate for filing as may be necessary to perfect the security interests purported to be created by the Security Documents, covering the applicable Collateral, (B) appropriately completed copies of all other recordings and filings of, or with respect to, the Security Documents as may be necessary to perfect the security interests purported to be created by the Security Documents to the extent that the corresponding Collateral and Guarantee Requirement is required to be complied with on the Closing Date, and (C) evidence that all other actions necessary to perfect the security interests purported to be created by the Security Documents have been taken or will be taken on the Closing Date to the extent that the corresponding Collateral and Guarantee Requirement is required to be complied with on the Closing Date.
(s) Insurance complying with Section 5.02 shall be in full force and effect and the Administrative Agent shall have received a certificate from the applicable Loan Parties’ insurance broker(s), dated on or around the Closing Date and identifying underwriters, type of insurance, insurance limits and policy terms, listing the special provisions required as set forth in Section 5.02, describing the insurance obtained and stating that such insurance is in full force and effect and that all premiums then due thereon have been paid (or with such other content as is reasonably acceptable to the Administrative Agent), in form and substance reasonably satisfactory to the Administrative Agent.
(t) The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property, which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein and (3) otherwise comply with the Flood Program; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgement of receipt of written notification from the Collateral Agent (1) as to the existence of each such Mortgaged Property, and (2) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; (D) if any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is in compliance with all applicable regulations of the Board; and (E) draft Mortgages and exhibits with respect to the Closing Date Real Property, in each case reasonably satisfactory to the Administrative Agent.
(u) The Administrative Agent shall have received a copy of the Risk Management Policy. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make additional Loans and of any Issuing Bank to issue, amend, extend or renew any Revolving Letter of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.08). Without limiting the generality of the provisions of Article IX, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent, the Joint Lead Arrangers or the Lenders unless the Administrative Agent and the Joint Lead Arrangers shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of the Loan Parties, initial Issuing Bank and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (ix) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to (y) Walkers, special Cayman Islands counsel for the effect set forth in Exhibit M Loan Parties and (iiz) local ▇▇▇▇▇ Law LP, special Anguilla counsel reasonably satisfactory to for the Administrative AgentLoan Parties, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent, the Lenders and each Issuing Bank on the Closing Date, Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received received, in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) belowParty: 017670-0129-Active.26122382.14
(i) a copy of the certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, certificate of formation, exempted limited partnership agreement agreement, or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) if such certification is not available in the applicable jurisdiction, otherwise certified by the Secretary or Assistant Secretary or similar officer of such Loan Party or (in the case of any Loan Party that is a limited partnership) its general partner, as applicable,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (iiiii) a certificate of the Secretary or Assistant Secretary or similar officer of each such Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, dated the Closing Date and certifying certifying:
(A1) that attached thereto is a true and complete copy of the by-laws (or memorandum and articles of association, partnership agreement, exempted limited partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (B2) below, ,
(B2) that attached thereto is a true and complete copy of resolutions (or equivalent documentation) duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions (or equivalent documentation) have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C3) that the certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, articles of incorporation, certificate of formation, exempted limited partnership agreement or limited liability agreement other equivalent organizational documents of such Loan Party have has not been amended since the date of the last amendment thereto as disclosed pursuant to clause (i) above,
(D4) as to the incumbency and specimen signature of each officer of the Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, executing any 017670-0129-Active.26122382.14 Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and Party, and
(E5) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated all fees payable thereto or to any Lender or Joint Lead Arranger on or prior to the Closing Date and, to the extent invoiced, all other amounts due and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect payable pursuant to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (Documents on or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after including, to the extent invoiced at least three Business Days prior to the Closing Date in accordance with Section 5.10(g).Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document;
(fe) The Administrative Agent shall have received copies ofa certificate of a Financial Officer of the Borrower or its general partner setting forth reasonably detailed calculations showing the EBITDA of the Group Members for the four fiscal quarters ending September 30, or an insurance broker's or agent's certificate as to coverage under, 2020. For purposes of determining compliance with the insurance policies required by conditions specified in this Section 5.024.02, each of which policies Lender shall be endorsed deemed to have consented to, approved or otherwise amended accepted or to include a "standard" be satisfied with each document or "New York" lender's loss payable endorsement and other matter required thereunder to name the Collateral Agent as additional insured, in form and substance be consented to or approved by or acceptable or satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms unless an officer of the Purchase Agreement and all other material agreements to be entered into in connection with Administrative Agent responsible for the Transactions, including any stockholder agreement to be entered into between transactions contemplated by the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Loan Documents shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, received notice from such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders Lender prior to the Closing DateDate specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank L/C Issuer on the Closing Date, a favorable written opinion of (i) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special LLP, counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local or foreign counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank L/C Issuer on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent organizational documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation, certificate of formation or limited liability agreement other equivalent organizational documents of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(h), the elements of the U.S. Borrower, dated Collateral Requirement required to be satisfied on the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment lien filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate, lien searches with the United States Patent and Trademark Office, United States Copyright Office and the Trademark Division of the Puerto Rico State Department and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that released concurrently with the closing of the Transactions on the Closing Date.
(e) The Evertec IPO shall have been, or shall be substantially concurrently with the initial borrowing hereunder, consummated, and the net cash proceeds thereof to Evertec shall have been, or shall be substantially concurrently with the initial borrowing hereunder, contributed to Holdings and then by Holdings to the Borrower for the purposes specified in Section 3.12.
(f) All Indebtedness under the Existing Credit Agreement shall have been, or shall be substantially concurrently with the initial borrowing hereunder, repaid and all commitments thereunder terminated, and the Administrative Agent shall have received a customary payoff letter evidencing such repayment and termination. All of the Senior Unsecured Notes shall have been called for redemption, the redemption price therefor shall have been, or shall be substantially concurrently with the initial borrowing hereunder, deposited with the trustee for the Senior Unsecured Notes and the Senior Unsecured Notes Indenture shall have been, or shall be substantially concurrently with the initial borrowing hereunder, discharged, and the Administrative Agent shall have received or shall substantially concurrently with the initial borrowing hereunder receive evidence of such discharge.
(g) The Lenders shall have received a customary solvency certificate signed by the Chief Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(h) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent that it is not practicable (w) for invoiced, all other amounts due and payable pursuant to the Loan Parties specified Documents on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(i) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such requirements Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be satisfied perfected by the filing of a UCC financing statement or possession of the certificated securities (if any) evidencing the Borrower’s and the Subsidiary Loan Parties’ equity and the security agreement giving rise to the security interest) is not provided on the Closing Date after the Borrower’s and each Subsidiary Loan Party’s use of commercially reasonable efforts to do so, the provision of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be delivered after the Closing Date in accordance with Section 5.10(g5.10(h).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders prior to the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇O’Melveny & ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special New York counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or and memorandum and articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person’s jurisdiction of incorporation) of the jurisdiction of its organization, and a certificate as to the good standing (or similar concept, to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary or similar officer of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing membermember or equivalent body) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or memorandum and articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation or other equivalent governing document of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and ;
(iv) a duly executed copy of the Intercreditor Agreement; and
(v) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC or PPSA financing statement (or the appropriate equivalent) or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (and judgment, bankruptcy, and federal and state tax Liens) (or PPSA or other equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to , or shall be released upon the extent that it is not practicable (w) for funding of the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph Loans.
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law the terms and conditions of the Acquisition as set forth in the Purchase Agreement and all other related documentation (Documents, without giving effect to any material amendment, supplement, modification or waiver or other modification thereof which is materially adverse to the Lenders not approved by without the Initial Lendersprior written consent of the Administrative Agent.
(f) The Borrower shall have received gross cash proceeds of (i) $46.5 million from the issuance of the New Senior Notes.
(g) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, such approval not unreasonably fees, amortization, maturity, covenants, defaults and remedies) shall be as set forth in the New Senior Notes Offering Memorandum or otherwise reasonably satisfactory to be withheld)the Administrative Agent.
(h) The Lenders shall have received the financial statements referred to in Section 3.05.
(i) The other Transactions On or prior to the Initial Borrowing Date and substantially concurrently with the incurrence of Loans and the use of such Loans to refinance the extensions of credit under the Existing Credit Facility Agreements on such date, all Indebtedness of Holdings and its Subsidiaries under the Existing Credit Facility Agreements shall have been consummated repaid in a manner consistent full, together with all fees and other amounts owing thereon, all commitments under the Existing Credit Facility Agreements shall have been terminated and all letters of credit issued pursuant to the Existing Credit Facility Agreements (other than the Existing Letters of Credit) shall have been terminated.
(j) On the Closing Date and substantially concurrently with the sources incurrence of Loans on such date, all security interests in respect of, and uses shown Liens securing, the Indebtedness under the Existing Credit Facility Agreements created pursuant to the security documentation relating to the Existing Credit Facility Agreements shall have been terminated and released, and the Administrative Agent shall have received all such releases as may have been requested by the Administrative Agent, which releases shall be in form and substance satisfactory to the Administrative Agent. Without limiting the foregoing, there shall have been delivered to the Administrative Agent, if requested, (w) payoff letters, in form and substance reasonably satisfactory to the Administrative Agent, (x) proper termination statements (Form UCC-3, PPSA-2C or the appropriate equivalent) for filing under the UCC or equivalent statute or regulation of each jurisdiction where a financing statement or application for registration (Form UCC-1 or PPSA-1C or the appropriate equivalent) was filed with respect to Holdings or any of its Subsidiaries in connection with the security interests created with respect to the Existing Credit Facility Agreements, (y) terminations or reassignments of any security interest in, or Lien on, any patents, trademarks, copyrights, or similar interests of Holdings or any of its Subsidiaries on which filings have been made and (z) terminations of all mortgages, leasehold mortgages, hypothecs and deeds of trust created with respect to property of Holdings or any of its Subsidiaries, in each case, to secure the obligations under the Existing Credit Facility Agreements, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(k) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrower and the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Existing Senior Notes, the Existing Subordinated Notes and the New Senior Notes, and (iii) other Indebtedness permitted pursuant to Section 6.01.
(l) The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and signed by the Chief Financial Officer of the Borrower confirming the solvency of Holdings, the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(m) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of White & Case LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(n) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(o) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act.
(p) The Borrower shall have used commercially reasonable efforts to have received a corporate credit rating by S&P and a corporate family rating by ▇▇▇▇▇’▇.
(q) The Administrative Agent shall have received a Borrowing Base Certificate.
(r) On the Closing Date, the Loan Parties shall have delivered to the Current Asset Revolving Facility Collateral Agent (or its designee) title certificates in respect of Transportation Equipment owned by the Loan Parties having an aggregate Net Orderly Liquidation Value of at least $112.5 million.
(s) Since March 31, 2007, there has been no event, change, occurrence, condition or circumstance that, either individually or in the aggregate, has had or could reasonably be expected to have a material adverse effect on the business, property, assets, liabilities, operations or condition (financial or otherwise) of Holdings, the Borrower and their Subsidiaries, taken as a whole, the ability of the Loan Parties to perform their obligations under the Loan Documents, or the validity or enforceability of any of the Loan Documents or the rights and remedies of the Current Asset Revolving Facility Administrative Agent, the Fixed Asset Revolving Facility Administrative Agent, the Current Asset Revolving Facility Collateral Agent, the Fixed Asset Revolving Facility Collateral Agent and the Lenders thereunder For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Loan Party hereby instructs its counsel to deliver such opinions.
(bc) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(cd) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
request (d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowerincluding without limitation, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) tax identification numbers and (c) of Section 4.01 and paragraph (q) of this Section 4.02addresses).
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the -83- Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Transactions shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement and all other related documentation (including Annex A) (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent Agent) without the prior consent of the Administrative Agent), except for those transactions described in Annex A that are specifically indicated to occur after the Closing, including each of the following:
(i) The Equity Financing shall have been consummated. The terms and conditions of the Equity Financing shall be as set forth in the Equity Commitment Letters or otherwise reasonably satisfactory in all respects to the Administrative Agent.
(ii) The Borrower shall have received copies ofnet cash proceeds from the issuance of $300.0 million of Senior Notes pursuant to the Senior Note Indenture; and
(iii) The terms and conditions of the Senior Notes (including terms and conditions relating to the interest rate, or an insurance broker's or agent's certificate as to coverage underfees, the insurance policies required by Section 5.02amortization, each of which policies maturity, subordination, covenants, defaults and remedies) shall be endorsed as set forth in the Offering Memorandum or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with have received:
(i) the material terms of financial statements referred to in Section 3.05; and
(ii) any additional financial statements received by Acquisition Corp. on or prior to the Purchase Agreement and all other material agreements Closing pursuant to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Acquisition Agreement, and the terms of the Stock Considerationincluding, without limitation, any financial statements reflecting RAG Colorado as a discontinued operation.
(h) The Stock Purchases Lenders shall have been consummated received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of Holdings and the Borrower, after giving effect to the Transactions, together with a certificate of the chief financial officer or shall be consummated simultaneously with another Responsible Officer of the initial Credit Event under this Agreement Borrower to the effect that such statements accurately present the (x) pro forma financial position of the Borrower and its Subsidiaries in accordance with applicable law GAAP and (y) amount on the Purchase Agreement and Closing Date of all other related documentation (without giving effect to any amendment, waiver or other modification adverse to Available Cash on Hand of the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Acquired Business.
(i) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Notes and (iii) other Indebtedness permitted pursuant to Section 6.01.
(j) The other Lenders shall have received a solvency certificate substantially in the form of Exhibit G and signed by the chief financial officer or another Responsible Officer of each of Holdings and the Borrower confirming the solvency of Holdings, the Borrower and the Subsidiaries on a consolidated basis after giving effect to the Transactions.
(k) There has not been any Material Adverse Effect, after giving effect to the Transactions, taken as a whole, since December 31, 2003.
(l) Except as set forth in Schedule 4.02 (e), no provision of any applicable law or regulation, including, without limitation, Mining Laws, and no judgment, injunction, order or decree shall prohibit the consummation of the Transactions, and all material actions by or in respect of or material filings with any Governmental Authority required to permit the consummation of the Transactions shall have been consummated in a manner consistent with taken, made or obtained, except for any such actions or filings the sources and uses shown on the pro forma capitalization dated February 13failure to take, 2003, provided make or obtain would not be material to the Lenders Borrower and its Subsidiaries, taken as a whole.
(m) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(n) The representations and warranties set forth in Sections 3.02, 3.03, 3.04 and 3.16 hereof shall be true and correct in all material respects on and as of the Closing Date.
(o) [intentionally omitted] (p) (A) the ratio of Consolidated Debt to pro forma adjusted EBITDA for the trailing four quarters ended immediately prior to the Closing Date shall not be greater than 5.00 to 1.00; and (B) the ratio of that portion of Consolidated Debt ranking pari passu with the Senior Notes and secured by a Lien on the property or assets of Holdings and the Subsidiaries to pro forma adjusted EBITDA for the trailing four quarters ended immediately prior to the Closing Date shall not be greater than 2.90 to 1.00; in the case of each of (A) and (B), on a pro forma basis giving effect to the Transactions (other than any Closing Date Revolving Facility Borrowings).
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank L/C Issuer on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank L/C Issuer on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; );
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party; and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(c), the elements of the U.S. Borrower, dated Collateral Requirement required to be satisfied on the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment lien filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and lien searches with the United States Patent and Trademark Office and United States Copyright Office and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to released concurrently with the extent that it is not practicable (w) for closing of the Loan Parties specified Transactions on Schedule 5.10(g) to satisfy paragraph the Closing Date.
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Merger shall have been consummated simultaneously or shall be consummated simultaneously substantively concurrent with the initial Credit Event closing under this Agreement in accordance with applicable law and the Purchase Merger Agreement, and no provision of the Merger Agreement and all other related documentation (without giving effect to shall have been amended, waived or otherwise modified in any amendment, waiver or other modification respect which is materially adverse to the Lenders not approved by interests of the Initial Lenders, such approval not unreasonably without the prior written consent of the Administrative Agent (it is understood and agreed that any (i) reduction in the purchase price, (ii) change to the definition of Material Adverse Effect (as defined in the Merger Agreement) or the related definitions therein or (iii) material increase in indebtedness permitted to be withheldoutstanding under the Merger Agreement, in the case of each of clauses (i), (ii) and (iii), shall be material and adverse to the Lenders).
(f) The condition in Section 6.2(a) of the Merger Agreement (but only with respect to representations and warranties that are material to the interests of the Lenders, and only to the extent that Holdings has the right to terminate its obligations under the Merger Agreement as a result of a breach of such representations in the Merger Agreement) shall be satisfied, and the representations and warranties made in Sections 3.01(a), (b) and (d), 3.02(a), 3.03, 3.10, 3.11, 3.17 and 3.19 hereof with respect to the Borrower and each Subsidiary Loan Party that is a Material Subsidiary shall be true and correct in all material respects.
(g) The Equity Contribution shall have been consummated and, to the extent any of the Equity Contribution is in the form of preferred Equity Interests, the terms of such preferred Equity Interests shall be reasonably satisfactory to the Joint-Lead Arrangers.
(h) The Borrower shall have received not less than $600,000,000 in aggregate gross cash proceeds from the issuance of the Secured Notes.
(i) The On the Closing Date, after giving effect to the Transactions and the other Transactions transactions contemplated hereby, the Borrower and its Subsidiaries shall have been consummated in outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Secured Notes and (iii) other Indebtedness permitted pursuant to (A) Section 6.01 hereof, and (B) the Merger Agreement.
(j) The Lenders shall have received a manner consistent with solvency certificate signed by the sources Chief Financial Officer of the Borrower, confirming the solvency of the Borrower and uses shown its Subsidiaries on a consolidated basis after giving effect to the Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(k) The Agents shall have received all fees payable thereto or to any Lender required to be paid on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(l) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date.
(m) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 or, in the case of an L/C Credit Extension, the applicable L/C Issuer and the Administrative Agent shall have received a Letter of Credit Application as required by Section 2.05(b).
(n) All amounts due or outstanding in respect of the Existing Credit Agreement shall have been (or substantially simultaneously with the Closing Date) paid in full, all commitments in respect thereof terminated and all guarantees thereof discharged and released.
(o) The Administrative Agent shall have received a certificate signed by the Chief Financial Officer of the Borrower, in form and substance reasonably satisfactory to the Joint-Lead Arrangers, certifying that the Total Leverage Ratio of the Borrower and its Subsidiaries calculated as of the Closing Date giving effect to the Transactions and utilizing EBITDAR for the four most recent Fiscal Quarters ended May 17, 2010 is not greater than 5.5 to 1.0.
(p) The Administrative Agent shall have received a counterpart of the Intercreditor Agreement signed by each party thereto.
(q) The Joint-Lead Arrangers shall have received the Pro Forma Financial Statements. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything herein to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement or possession of the certificated securities (if any) evidencing the Borrower’s and the Subsidiary Loan Parties’ Equity Interest and the security agreement giving rise to the security interest) is not provided on the Closing Date, the provision of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Facilities on the Closing Date.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank L/C Issuer on the Closing Date, a favorable written opinion of (i) ▇▇O’Melveny & ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank L/C Issuer on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(i), the elements of the U.S. Borrower, dated Collateral Requirement required to be satisfied on the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Merger shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law the terms and conditions of the Purchase Agreement and all other related documentation (Merger as set forth in the Merger Documents, without giving effect to any amendment, modification or waiver or other modification by Holdings thereto which is materially adverse to the interests of the Lenders without the approval of the Requisite Lead Arrangers (which approval shall not approved by be unreasonably withheld, conditioned or delayed).
(f) The conditions in Section 6.02(a) of the Initial Merger Agreement (but only with respect to representations and warranties that are material to the interests of the Lenders, and only to the extent that Parent has the right to terminate its obligations under the Merger Agreement as a result of a breach of such approval not unreasonably representations in the Merger Agreement) shall be satisfied, and the representations and warranties made in Sections 3.01(b) and (d), 3.02(a), 3.03, 3.10, 3.11 and 3.23 hereof shall be true and correct in all material respects.
(g) The Equity Contributions shall have been consummated and, to the extent any of the Equity Contributions are in the form of preferred Equity Interests, the terms of such preferred Equity Interests shall be withheld)reasonably satisfactory to the Requisite Lead Arrangers to the extent material to the interests of the Lenders.
(h) The Lenders shall have been provided access to the financial statements referred to in Section 3.05.
(i) The On the Closing Date, after giving effect to the Transactions and the other Transactions transactions contemplated hereby, the Borrower and its Subsidiaries shall have been consummated outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Unsecured Notes, (iii) the loans and other extensions of credit under the Interim Loan Agreement, (iv) the Retained Notes, (v) the Senior Convertible Notes and (vi) other Indebtedness permitted pursuant to Section 6.01.
(j) The Lenders shall have received a solvency certificate substantially in the form of Exhibit B and signed by the Chief Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a manner consistent with consolidated basis after giving effect to the sources and uses shown Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(k) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(l) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date.
(m) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 or, in the case of an L/C Credit Extension, the applicable L/C Issuer and the Administrative Agent shall have received a Letter of Credit Application as required by Section 2.05(b).
(n) All amounts due or outstanding in respect of the Refinanced Indebtedness constituting the existing credit agreements shall have been (or substantially simultaneously with the closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof discharged and released. Holdings or the Borrower shall, or shall cause an Affiliate to, either (i) have purchased each of the Refinanced Indebtedness constituting notes validly tendered and not withdrawn in the debt tender offer and, to the extent not all the Refinanced Indebtedness constituting notes are so purchased, the indenture relating thereto shall have been amended pursuant to a consent solicitation to remove substantially all of the negative covenants therefrom that can be amended by a majority vote of the holders thereof, or (ii) have caused Holdings or the Borrower to have issued a notice of optional redemption for, and deposited funds with the trustee under the indenture governing the Refinanced Indebtedness constituting notes sufficient to “discharge” on the Closing Date such notes pursuant to the terms of the indenture governing such notes or, to the extent a discharge is unavailable, set aside an amount of funds sufficient, in the reasonable judgment of the Borrower, to redeem the Refinanced Indebtedness constituting notes on the earliest redemption date permitted under the indenture governing such notes. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:Date (which shall in no event be a date that occurs after December 28, 2006):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special in-house counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (iiiii) local counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law the terms and conditions of the Purchase Agreement and all other related documentation (Acquisition as set forth in the Acquisition Documents, without giving effect to any material amendment, supplement, modification or waiver or other modification thereof which is materially adverse to the Lenders not approved by without the Initial Lendersprior written consent of the Joint Lead Arrangers.
(f) The Equity Financing shall have been consummated.
(g) The Borrower shall have received gross cash proceeds of (i) $750.0 million from the issuance of the Second Lien Notes or from senior unsecured bridge term loans and (ii) $425.0 million from the issuance of the Senior Subordinated Notes or from senior subordinated bridge term loans.
(h) The terms and conditions of the Second Lien Notes and the Senior Subordinated Notes (including terms and conditions relating to the interest rate, such approval not unreasonably fees, amortization, maturity, subordination (in the case of the Senior Subordinated Notes), security (in the case of the Second Lien Notes), covenants, defaults and remedies) shall be as set forth in the Second Lien Notes Offering Memorandum and the Senior Subordinated Notes Indenture or otherwise reasonably satisfactory to be withheld)the Administrative Agent.
(i) The other Transactions All amounts due or outstanding in respect of the Existing Credit Agreement shall have been consummated in a manner consistent (or substantially simultaneously with the sources closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and uses shown all guarantees thereof and security therefore discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrower and the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Notes or senior unsecured bridge term loans, (iii) the Senior Subordinated Notes or senior subordinated bridge term loans and (iv) other Indebtedness permitted pursuant to Section 6.01.
(l) The Lenders shall have received a solvency certificate substantially in the form of Exhibit B and signed by the Chief Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(m) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(n) The Administrative Agent shall have received all insurance certificates satisfying the requirements of Section 5.02 of this Agreement. The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of the Borrower, the L/C Issuer and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, itself and the Lenders and each Issuing Bank on the Closing DateL/C Issuer, a favorable written opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York and England and Wales counsel for the Loan Parties, (ii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special Nevada counsel for the Loan Parties and (iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇Co., special Israel counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative AgentLoan Parties, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent Lenders and the Lenders L/C Issuers and (C) substantially in form and substance consistent with similar transactions for the form of Exhibit N Borrower and reasonably satisfactory to the Administrative Agent covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary, Responsible Officer or similar officer of each Loan Party or, in the case of each any UK Subsidiary Loan Party each Party, a certificate of a Director, dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by a Responsible Officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) ); it being understood that, in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such any Israeli Subsidiary Loan Party; (ii) a certificate , an extract from the Israeli Registrar of the Secretary Companies dated on or Assistant Secretary of each Loan Party dated about the Closing Date and certifying shall be sufficient for the purpose of this clause (Ac)(ii),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(v) in the case of any UK Subsidiary Loan Party, (C) that attached thereto is a true and complete copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement resolutions duly passed by the shareholders of such UK Subsidiary Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such UK Subsidiary Loan Party is a party and that such shareholder resolutions have not been modified, rescinded or amended since and are in full force and effect on the date of the last amendment thereto disclosed pursuant to clause Closing Date,
(i) above, (Dvi) 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 Loan Party and Party, and
(Evii) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates Certificate, dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the extent that it is not practicable (w) Administrative Agent for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(grelease shall have been made).
(fe) The Administrative Agent shall have received copies of, or an insurance broker's or agent's a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit I and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Borrower confirming the solvency of the Borrower and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory consolidated basis after giving effect to the Administrative AgentTransactions on the Closing Date.
(f) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document (which amounts may be offset against the proceeds of the Term B Facility and the Revolving Facility).
(g) The Initial Lenders Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be reasonably satisfied with (or waived pursuant to the material terms hereof) as of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationClosing Date.
(h) The Stock Purchases Administrative Agent shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation received at least three (without giving effect to any amendment, waiver or other modification adverse 3) Business Days prior to the Lenders Closing Date all documentation and other information required by Section 9.20, to the extent such documentation and other information has been requested not approved by less than ten (10) Business Days prior to the Initial Lenders, such approval not unreasonably to be withheld)Closing Date.
(i) The other Transactions Arrangers shall have been consummated received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its subsidiaries, for the fiscal years ended December 31, 2017 and December 31, 2018 and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its subsidiaries, for the fiscal quarter ended June 30, 2019 and the period of the fiscal year then ended, in a manner consistent each case prepared in accordance with the sources and uses shown on the pro forma capitalization dated February 13GAAP in all material respects.
(j) [Reserved].
(k) The Administrative Agent shall have received, 2003, provided at least three (3) Business Days prior to the Lenders Closing Date, a Beneficial Ownership Certification in relation to the Borrower if it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and is not subject to any exemption thereunder, to the extent requested not less than ten (10) Business Days prior to the Closing Date.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, (i) all Indebtedness under the Existing Credit Agreement shall have been, or shall be substantially concurrently with the initial borrowing hereunder, repaid and all commitments thereunder terminated and the Administrative Agent shall have received evidence thereof and (ii) the Borrower shall not have any Indebtedness other than the Term B Facility, the Revolving Facility and other Indebtedness permitted under Section 6.01.
(m) Since December 31, 2018, there shall not have occurred any event or circumstance that has had or would reasonably be expected to have a Material Adverse Effect.
(n) The Borrower shall have received all material governmental and regulatory approvals necessary to effect the Transactions on the terms contemplated by this Agreement.
(o) The Borrower shall have delivered to the Administrative Agent a certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b) and Section 4.02(m) hereof.
(p) [Reserved].
(q) [Reserved].
(r) The Arrangers, the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence satisfactory to each of the Arrangers that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board.
(s) There shall be no action, suit, proceeding (whether administrative, judicial or otherwise) or arbitration (whether or not purportedly on behalf of any Loan Party) at law or in equity, or any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign that are pending or, to the knowledge of the Borrower, threatened against any Loan Party or affecting any property of any Loan Party, that relate to the Loan Documents or the Transactions.
(t) The Loan Parties shall have insurance complying with the requirements of Section 5.02 in place and in full force and effect, and the Administrative Agent, the Collateral Agent and the Arrangers shall each have received (x) a certificate from the Borrower’s insurance broker(s) reasonably satisfactory to them stating that such insurance is in place and in full force and effect and (y) copies of all policies evidencing such insurance (or a binder, commitment or certificates signed by the insurer or a broker authorized to bind the insurer, in which case copies of the applicable policies shall be delivered to the Administrative Agent within sixty (60) days after the Closing Date or such later date as the Administrative Agent may agree in its sole discretion) naming the Collateral Agent as an additional insured and as loss payee (until the Termination Date), in accordance with the terms set forth in Section 5.02. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such ▇▇▇▇▇▇’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On Other than as specified in Section 4.03, on the Closing Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Effective Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerCompany, substantially in form and substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local U.S. counsel reasonably satisfactory to the Administrative Agent, Agent as may be reasonably requested by the Administrative Agent in each case (A) dated the Closing Effective Date, (B) addressed to each Issuing Bank on the Closing Effective Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions Transaction as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Company hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Person that is a Loan Party on the Effective Date each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, memorandum and articles of association, partnership agreement or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing under the jurisdiction of its organization (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the manager, Secretary or Assistant Secretary or other appropriate officer of each such Loan Party; ;
(ii) a certificate of the manager, director, Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Effective Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, ,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Effective Date, ,
(C) that the certificate or articles of incorporation, memorandum and articles of association, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer officer, director or attorney-in-fact as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative AgentAgent shall have reasonably requested (including, the Lenders without limitation, tax identification numbers and any Issuing Bank on the Closing Date may reasonably requestaddresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Requirements required to be satisfied as of the Effective Date shall have been satisfied or waived and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Effective Date and signed by a Responsible Officer of the U.S. Borrowereach Loan Party, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the each Loan Parties Party in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or will promptly be released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of The Lenders shall have received the Collateral and Guarantee Requirement with respect financial statements referred to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g3.05(a).
(f) The Administrative Agent Lenders shall have received copies of, a solvency certificate substantially in the form of Exhibit I and signed by a director or an insurance broker's or agent's certificate as to coverage under, a Responsible Officer of Holdings confirming the insurance policies required by Section 5.02, each solvency of which policies shall be endorsed or otherwise amended to include Holdings and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory consolidated basis after giving effect to the Administrative AgentTransaction.
(g) The Initial Lenders No provision of any applicable law or regulation and no judgment, injunction, order or decree shall be reasonably satisfied with prohibit the material terms consummation of the Purchase Agreement Transaction, and all other material agreements actions by or in respect of or material filings with any Governmental Authority required to permit the consummation of the Transaction shall have been taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be entered into in connection with the Transactions, including any stockholder agreement material to be entered into between the stockholders of Holdings and the Koyo Purchase Agreementits Subsidiaries, and the terms of the Stock Considerationtaken as a whole.
(h) The Stock Purchases Administrative Agent shall have been consummated received all fees payable to it, MLPF&SI or shall be consummated simultaneously with any other Lender on or prior to the initial Credit Event under this Agreement in accordance with applicable law and Effective Date and, to the Purchase Agreement and extent invoiced prior to the Effective Date, all other related documentation (without giving effect to any amendment, waiver or other modification adverse amounts due and payable pursuant to the Lenders not approved Loan Documents on or prior to the Effective Date, including, to the extent invoiced prior to the Effective Date in reasonable detail, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp and any U.S. local or foreign counsel) required to be reimbursed or paid by the Initial Lenders, such approval not unreasonably to be withheld)Loan Parties hereunder or under any Loan Document.
(i) The other Transactions Administrative Agent shall have been consummated received evidence that the insurance required by Section 5.02 is in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders prior to the Closing Dateeffect.
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
First Credit Event. On the Closing Date:
(a) The Term Administrative Agent shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Term Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) Each of the Term Administrative Agent and the Revolving Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel substance reasonably satisfactory to the Term Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Term Administrative Agent, the Revolving Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Term Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Term Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Loan Party hereby instructs its counsel to deliver such opinionsopinion.
(bc) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Term Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(cd) The Term Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of each Loan Party signed by the Secretary or Assistant Secretary or similar officer of such Loan Party, in each Loan Party case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; and
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Term Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request.
request (d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowerincluding without limitation, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) tax identification numbers and (c) of Section 4.01 and paragraph (q) of this Section 4.02addresses).
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Collateral Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Collateral Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(fi) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, Refinancing in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms respect of the Purchase Existing Secured Credit Agreement and the Existing Unsecured Credit Agreement (including the payment of all other material agreements to be entered into outstanding amounts owed in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings therewith and the Koyo Purchase Agreement, and the terms termination of the Stock Consideration.
(hall commitments thereunder) The Stock Purchases shall have been consummated or shall be consummated simultaneously with or immediately following the initial closing under this Agreement; and
(ii) Concurrently or prior to the first Credit Event hereunder, an irrevocable notice of redemption shall have been issued in respect of the Existing Notes and a consent solicitation shall have been completed releasing the U.S. Borrower and its Affiliates from their obligations under this Agreement all of the covenants contained in accordance with applicable law and the Purchase Agreement and all other related documentation Existing Notes Indenture that would restrict the consummation of the Transaction.
(without g) The Lenders shall have received the financial statements referred to in Section 3.05.
(h) After giving effect to any amendmentthe Transactions and the other transactions contemplated hereby, waiver or Holdings and its Subsidiaries shall have outstanding no Indebtedness other modification adverse than (i) the Loans and other extensions of credit under this Agreement, (ii) intercompany Indebtedness and (iii) other Indebtedness of the U.S. Borrower and its Subsidiaries in an aggregate principal amount not to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)exceed U.S.$60,000,000.
(i) The other Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by the chief financial officer or another Responsible Officer of the U.S. Borrower confirming the solvency of the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(j) Except as set forth in Schedule 4.02(k), no provision of any applicable law or regulation, and no judgment, injunction, order or decree shall prohibit the consummation of the Transactions, and all material actions by or in respect of or material filings with any Governmental Authority required to permit the consummation of the Transactions shall have been consummated in a manner consistent with taken, made or obtained, except for any such actions or filings the sources and uses shown on the pro forma capitalization dated February 13failure to take, 2003, provided make or obtain would not be material to the Lenders U.S. Borrower and its Subsidiaries, taken as a whole.
(k) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Shearman & Sterling LLP and local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(l) The representations and warranties set forth in Article III hereof, other than Section 3.06, shall be true and correct in all material respects on and as of the Closing Date and (ii) no Default or Event of Default shall have occurred and be continuing.
(m) The ratio of Consolidated Net Debt (giving pro forma effect to the Transactions) to Pro Forma Adjusted EBITDA for the trailing four quarters ended June 30, 2006 shall not be greater than 3.50 to 1.00.
(n) The Lead Arrangers shall have received a certificate of each of Holdings and each Borrower, signed by a Responsible Officer, as to the matters set forth in clauses (f), (g), (h), (j), (l) and (m) of this Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Dresser Inc)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇O'Melveny & ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. Borrower, substantially in form and substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(bc) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(cd) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
request (d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowerincluding without limitation, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) tax identification numbers and (c) of Section 4.01 and paragraph (q) of this Section 4.02addresses).
(e) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms elements of the Purchase Agreement and all other material agreements Acquisition contemplated to be entered into in connection with consummated on the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law in all material respects and the Purchase Agreement terms and all other related documentation conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(without giving effect to any amendment, waiver or other modification adverse to g) The Administrative Agent shall have received satisfactory evidence that the Lenders not approved by the Initial Lenders, such approval not unreasonably fees and expenses to be withheld)incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been consummated obtained and be in a manner consistent full force and effect or waived in accordance with the sources Transaction Agreement and uses shown with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the pro forma capitalization dated February 13, 2003, provided Transaction or the financing thereof.
(o) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangers.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of the Borrower, the Issuing Banks and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (i) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative Agent, in each case Loan Parties (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders on the Closing Date and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N and Administrative Agent covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (Dv) 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 Loan Party and Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates Certificate, dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the extent that it is not practicable (w) Administrative Agent for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(grelease shall have been made).
(fe) The Administrative Agent shall have received copies of, or an insurance broker's or agent's the financial statements referred to in Section 3.05.
(f) The Lenders shall have received a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit C and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Borrower confirming the solvency of the Borrower and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory consolidated basis after giving effect to the Administrative AgentTransactions on the Closing Date.
(g) The Initial Lenders Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reasonably satisfied with reimbursed or paid by the material terms Loan Parties hereunder or under any Loan Document on or prior to the Closing Date (which amounts may be offset against the proceeds of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationLoans).
(h) The Stock Purchases Except as set forth in Schedule 5.12 (which, for the avoidance of doubt, shall have been consummated or override the applicable clauses of the definition of “Collateral and Guarantee Requirement”) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be consummated simultaneously with satisfied (or waived) as of the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Closing Date.
(i) The other Transactions Administrative Agent shall have been consummated in a manner consistent with the sources received all documentation and uses shown on the pro forma capitalization dated February 13other information required by Section 3.25(a), 2003, provided to the Lenders extent such information has been requested not less than ten (10) Business Days prior to the Closing Date. On or prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests at least five Business Days prior to the Closing Date, a Beneficial Ownership Regulation Certification in relation to such Loan Party.
(j) The Borrower shall have delivered to the Administrative Agent a certificate dated as of the Closing Date, to the effect set forth in Sections 4.01(b) and (c) hereof.
(k) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of the Borrower or any of the Subsidiaries shall have any third party Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement (including the Existing Roll-Over Letters of Credit, which shall be deemed to be Letters of Credit issued under and subject to this Agreement), other Indebtedness permitted to be incurred or outstanding on or prior to the Closing Date, (iii) other Indebtedness incurred for capital expenditures or working capital purposes and (iv) other Indebtedness permitted under Section 6.01 or approved by the Arrangers in their reasonable discretion. For purposes of determining compliance with the conditions specified in Section 4.01 and this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Cerence Inc.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) ▇▇▇▇▇▇▇ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel substance reasonably satisfactory to the Administrative AgentAgent and (ii) special counsel to the Administrative Agent in the United Kingdom and France, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Loan Party hereby instructs its counsel to deliver such opinions.
(bc) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(cd) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) or, with respect to any Foreign Subsidiary other than a Subsidiary organized under the laws of England, an officer or director or, with respect to any Subsidiary organized under the law of England, a director of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party other than the Initial Foreign Borrowers, and in the case of the UK Borrower a certificate of a director of the UK Borrower, and in the case of the French Borrower, a certificate of the President of the French Borrower, in each case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a Borrower, the borrowings hereunder, and in the case of the UK Borrower that neither the borrowings nor the grant of a guarantee or security hereunder will breach any borrowing, guarantee, security or other limit binding on the UK Borrower, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer or, with respect to the French Borrower, a third party reasonably acceptable to the Administrative Agent as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request.
request (d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowerincluding without limitation, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) tax identification numbers and (c) of Section 4.01 and paragraph (q) of this Section 4.02addresses).
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Domestic Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalent) filings made with respect to the Domestic Loan Parties in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Transactions shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement and all other related documentation (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent Agent) without the prior consent of the Administrative Agent), including each of the following:
(i) The Equity Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement. The terms and conditions of the Equity Financing shall be as set forth in the Equity Commitment Letters or otherwise reasonably satisfactory in all respects to the Administrative Agent;
(ii) The Domestic Borrower shall have received copies ofor shall receive simultaneously net cash proceeds from the issuance of U.S.$420.0 million of Senior Subordinated Notes pursuant to the Senior Subordinated Note Indenture; and
(iii) The terms and conditions of the Senior Subordinated Notes (including terms and conditions relating to the interest rate, or an insurance broker's or agent's certificate as to coverage underfees, the insurance policies required by Section 5.02amortization, each of which policies maturity, subordination, covenants, defaults and remedies) shall be endorsed as set forth in the Offering Memorandum or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with have received:
(i) the material terms of financial statements referred to in Section 3.05; and
(ii) any additional financial statements received by Acquisition Corp. on or prior to the Purchase Agreement and all other material agreements Closing pursuant to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Acquisition Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without After giving effect to any amendmentthe Transactions and the other transactions contemplated hereby, waiver or Holdings and their Subsidiaries shall have outstanding no Indebtedness other modification adverse than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Subordinated Notes and (iii) other Indebtedness permitted pursuant to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Section 6.01.
(i) The other Lenders shall have received (i) a solvency certificate substantially in the form of Exhibit G and signed by the chief financial officer or another Responsible Officer of the Domestic Borrower confirming the solvency of each Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions and (ii) a solvency certificate substantially in the form of Exhibit H and signed by the chief financial officer or another Responsible Officer of Holdings confirming the solvency of Holdings and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(j) There has not been any Material Adverse Effect, after giving effect to the Transactions, taken as a whole, since December 31, 2003.
(k) Except as set forth in Schedule 4.02(k), no provision of any applicable law or regulation, and no judgment, injunction, order or decree shall prohibit the consummation of the Transactions, and all material actions by or in respect of or material filings with any Governmental Authority required to permit the consummation of the Transactions shall have been consummated in taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to each Borrower and its Subsidiaries, taken as a manner consistent with the sources and uses shown whole.
(l) The Agents shall have received all fees payable thereto or to any Lender on the pro forma capitalization dated February 13, 2003, provided or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Shearman & Sterling LLP and local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(m) The representations and warranties set forth in Sections 3.02, 3.03 and 3.04 hereof shall be true and correct in all material respects on and as of the Closing Date.
(n) The ratio of Consolidated Debt to Pro Forma Adjusted EBITDA for the trailing four quarters ended immediately prior to the Closing Date shall not be greater than 6.25 to 1.00.
(o) The Administrative Agent shall have received copies of the Phase I and Phase II assessments reports being generated by Environ Corporation on behalf of the Borrowers.
(p) The Administrative Agent shall have received a certificate signed by a Responsible Officer of each of Holdings and the Domestic Borrower as to the matters set forth in clauses (f), (h), (j), (k), (m) and (n) of this Section 4.02.
(q) The Administrative Agent shall have received copies of each of the License Agreement, the Supply Agreement and the Transition Services Agreement, in each case, in form and substance in form and substance reasonably satisfactory to the Administrative Agent.
(r) The French Borrower shall have received a TEG letter substantially in the form of Exhibit K from the Administrative Agent.
Appears in 1 contract
First Credit Event. On The obligations of (i) the Lenders to make Loans and (ii) any Issuing Bank to issue Letters of Credit on the Closing Date are subject to the satisfaction (or waiver in accordance with Section 10.08) of the following conditions on the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Subsidiary Loan Parties and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral AgentLenders, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative Agent, in each case Loan Parties (A) dated the Closing Date, (B) addressed to the Agents, the Lenders and each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) that attached thereto is a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (B) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) that attached thereto is a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(Cv) that the certificate or memorandum and articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation or other equivalent governing document of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, ,
(Dvi) 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 Loan Party and Party,
(Evii) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iiiviii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to this clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestc).
(d) [Reserved].
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowerfinancial statements referred to in Section 3.05(b).
(f) [Reserved].
(g) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, dated to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, confirming compliance with including, to the conditions precedent extent invoiced at least one Business Day prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, out-of-pocket charges and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(h) Except as set forth in paragraphs Schedule 5.17 (b) which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and (c) of Section 4.01 and paragraph (q) Guarantee Requirement” for the purposes of this Section 4.02.
(e) The and subject to the grace periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date; provided that, on the Closing Date, the Loan Parties shall only be required to (i) deliver Uniform Commercial Code financing statements, (ii) execute and deliver intellectual property security agreements, to the extent such security agreements can be delivered on or prior to the Closing Date after exercise of commercially reasonable efforts, (iii) comply with clause (i) of the definition of “Collateral and Guarantee Requirement” to the extent compliance is required thereunder prior to or as of the Closing Date, (iv) comply with clause (j) of the definition of “Collateral and Guarantee Requirement”, to the extent the documents and information required thereby can be delivered on or prior to the Closing Date after exercise of commercially reasonable efforts, and (v) execute and deliver the Collateral Agreement.
(i) The Administrative Agent and the Co-Collateral Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT, at least three (3) days prior to the Closing Date to the extent such information has been requested not less than five (5) Business Days prior to the Closing Date.
(j) Since September 30, 2015, there shall not have occurred or there shall not exist any event, condition, circumstance or contingency (other than as customarily occurs as a result of events leading up to and following the commencement of a proceeding under chapter 11 of the Bankruptcy Code by the Loan Parties or the Verso Debtors and the commencement of the Cases) that has had or would reasonably be expected to have a Material Adverse Effect.
(k) Concurrently with or prior to the incurrence of Loans, the Borrower and the Subsidiaries shall have borrowed loans under the DIP Term Loan Agreement in a principal amount of at least $125.0 million, and the DIP Term Loan Agreement shall remain in effect.
(l) All Indebtedness of Holdings, the Borrower and its Subsidiaries under the Prepetition ABL Credit Agreement shall have been satisfied repaid in full or shall be repaid substantially concurrently with the Closing Date, together with all fees and other amounts owing thereon (other than with respect to certain outstanding Letters of Credit listed on Schedule 1.01D), all commitments under the Prepetition ABL Credit Agreement and, except as otherwise provided in the Interim Financing Order, all related agreements material to the interests of the Lenders shall have been terminated and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer reasonably satisfactory evidence of each of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code foregoing.
(or equivalentm) filings made with respect to the Loan Parties in the jurisdictions contemplated [Reserved].
(n) The DIP Intercreditor Agreement shall have been executed and delivered by the Perfection Certificates and copies of the financing statements respective parties thereto.
(or similar documentso) disclosed by such search and evidence reasonably satisfactory [Reserved].
(p) The Borrower shall have delivered to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) a certificate, dated as of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after to the Closing Date effect set forth in accordance with Section 5.10(g)4.01(b) and Section 4.02(j) and including other certifications reasonably requested by the Administrative Agent.
(fq) The Administrative Agent Petition Date shall have received copies ofoccurred no later than January 27, 2016, and each Loan Party shall be a debtor and a debtor-in-possession. All of the “first day orders” entered by the Bankruptcy Court on or an insurance broker's or agent's certificate as to coverage underabout the time of commencement of the Cases (and if any such orders shall not have been entered by the Bankruptcy Court, the insurance policies required by Section 5.02, each form of which policies such orders submitted to the Bankruptcy Court for approval) of the type referred to in clause (a) or (b) of the definition of “Approved Bankruptcy Court Order” shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent, and all other “first day orders” entered by the Bankruptcy Court on or about the time of commencement of the Cases (and if any such orders shall not have been entered by the Bankruptcy Court, the form of such orders submitted to the Bankruptcy Court for approval) shall be reasonably satisfactory to the Administrative Agent.
(gr) One or more orders, in form and substance satisfactory to Administrative Agent in its sole discretion, approving such cash management systems and arrangements (as the same may be amended, supplemented or modified from time to time after entry thereof in accordance with the terms hereof, the “Cash Management Order”) (it being understood and agreed that an order in the form of Exhibit P shall, if entered by the Bankruptcy Court, be deemed acceptable to the Administrative Agent) shall have been entered by the Bankruptcy Court, which Cash Management Order shall be in full force and effect and shall not have been (x) stayed, vacated or reversed, or (y) amended or modified except as otherwise agreed to in writing by Administrative Agent in its sole discretion.
(s) Not later than three (3) Business Days following the commencement of the Cases (or such later date as the Administrative Agent may agree), an interim order approving the Loan Documents in form and substance satisfactory to Administrative Agent in its sole discretion (as the same may be amended, supplemented or modified from time to time after entry thereof in accordance with the terms hereof, the “Interim Financing Order”) (it being understood and agreed that an order in the form of Exhibit O shall, if entered by the Bankruptcy Court, be deemed acceptable to the Administrative Agent) shall have been entered by the Bankruptcy Court, which Interim Financing Order shall, among other things, (i) have been entered on such prior notice to such parties as may be satisfactory to the Administrative Agent in its sole discretion, (ii) authorize the extensions of credit in respect of the DIP Facilities, each in the amounts and on the terms set forth herein, (iii) grant the Superpriority Claim status and other Collateral and Liens referred to herein and in the other Loan Documents, (iv) approve the payment by the Borrower of the fees provided for herein, (v) approve the repayment in full of the Prepetition ABL Credit Agreement from the proceeds of the DIP Facilities and, upon the indefeasible repayment of the Prepetition ABL Debt, the release of all Liens securing the Prepetition ABL Debt and (vi) not have been (A) stayed, vacated or reversed, or (B) amended or modified except as otherwise agreed to in writing by Administrative Agent in its sole discretion. The Administrative Agent shall have received a signed copy of the Interim Financing Order.
(t) One or more orders, in form and substance satisfactory to Administrative Agent in its sole discretion, approving and authorizing the NewPage Debtors to make specified payments under the Shared Services Agreement, which may be done through the Interim Financing Order on an interim basis or another order filed in connection with the Shared Services Agreement (together with, after entry thereof, any order of the Bankruptcy Court referred to in Section 6.16, such order(s) as the same may be amended, supplemented or modified from time to time after entry thereof in accordance with the terms hereof, the “SSA Order”) (it being understood and agreed that an order in the form of Exhibit Q, if any, shall, if entered by the Bankruptcy Court, be deemed acceptable to the Administrative Agent) shall have been entered by the Bankruptcy Court, which SSA Order shall (i) have been entered on such prior notice to such parties as may be satisfactory to the Administrative Agent in its sole discretion and (ii) shall be in full force and effect and not have been (A) stayed, vacated or reversed, or (B) amended or modified except as otherwise agreed to in writing by Administrative Agent in its sole discretion, other than any amendment or modification not adverse to the interests of the Lenders in any material respect (it being understood and agreed that any amendment or modification providing for an increase in the net cash monthly amount payable until the date that is 90 days after the Petition Date as specified in the SSA Order or a change in the priority of any Lien granted pursuant to the SSA Order shall be deemed to be material).
(u) No trustee or examiner having expanded powers shall have been appointed, with respect to the Loan Parties, any of their subsidiaries or their respective properties.
(v) The Initial Lenders Joint Lead Arrangers and the Administrative Agent shall have received and be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated monthly projections for the 18 months after the Closing Date dated as of a date not more than three (3) business days prior to the Closing Date and in a manner consistent with form customary for “DIP budgets” (the sources and uses shown on “18-Month Projections”), (ii) a cash flow forecast for the pro forma capitalization 13-week period ending after the Closing Date dated February 13, 2003, provided as of a date not more than three (3) business days prior to the Lenders Closing Date, and (iii) a Borrowing Base Certificate dated as of a date not more than three (3) business days prior to the Closing Date.
(w) After giving effect to the initial Borrowing and issuance (or deemed issuance) of Letters of Credit under the Revolving Facility and borrowings under the DIP Term Loan Facility and use of proceeds thereof, in each case on the Closing Date, the Borrower shall have Excess Availability of at least $50.0 million.
(x) There shall exist no unstayed action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Cases and any bankruptcy case filing by the Verso Debtors or the consequences that would normally result from the commencement and continuation of the Cases and any bankruptcy case filing by the Verso Debtors) that would reasonably be expected to have a Material Adverse Effect.
(y) Each of the Verso Debtors shall be a debtor and a debtor-in-possession in a proceeding under chapter 11 of the Bankruptcy Code filed in the District of Delaware contemporaneously with the Cases and, for administrative purposes only, jointly administered with the Cases. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Verso Paper Holdings LLC)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) ▇▇▇▇▇▇▇ Thacher & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties and Crestwood Equity Partners and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings each in form and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel substance reasonably satisfactory to the Administrative Agent, in each case Agent (A) dated the Closing Date, Date and (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially Lenders, in each case as of the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably requestClosing Date, and each of Holdings Loan Party and the U.S. Borrower Crestwood Equity Partners hereby instructs its instruct their counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party and Crestwood Equity Partners each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan PartyParty and Crestwood Equity Partners, (A) in the case of the formation documents of a corporationregistered entity, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party and Crestwood Equity Partners as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability companyother constitutional documents, certified by the Secretary Secretary, Assistant Secretary, other senior officer, or Assistant Secretary the general partner, managing member or sole member, of each such Loan PartyParty and Crestwood Equity Partners; and
(ii) a certificate of the Secretary Secretary, Assistant Secretary, Director, President or Assistant Secretary other senior officer or the general partner, managing member or sole member, of each Loan Party and Crestwood Equity Partners, in each case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan Party and Crestwood Equity Partners 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, Date,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party and Crestwood Equity Partners (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and the Parent Guarantee, as applicable and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer or director executing any Loan Document Document, the Parent Guarantee or any other document delivered in connection herewith on behalf of such Loan Party and Crestwood Equity Partners, as applicable, and
(ED) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party and Crestwood Equity Partners or, to the knowledge of such personPerson, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency Party and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestCrestwood Equity Partners.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of Subject to any items on Schedule 5.14, the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Merger shall have been consummated or shall be consummated simultaneously substantially contemporaneously with the initial Credit Event closing under this Agreement Agreement.
(f) The Lenders shall have received a solvency certificate substantially in accordance with applicable law the form of Exhibit F and signed by a Financial Officer of the Purchase Agreement Borrower confirming the solvency of the Borrower and all other related documentation (without its Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions.
(g) The Agents shall have received all fees payable thereto or to any amendment, waiver Lender or other modification adverse to the Lenders not approved Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Initial LendersLoan Parties hereunder, under any Loan Document or under the Parent Guarantee.
(h) (x) The representations and warranties set forth in the Loan Documents and in the Parent Guarantee shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such approval not unreasonably date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be withheld)true and correct in all material respects as of such earlier date) and except to the extent such representations and warranties are expressly qualified by materiality (in which case such representations and warranties shall be true and correct in all respects as of the applicable date) and (y) no Default or Event of Default shall have occurred and be continuing on and as of the Closing Date.
(i) The other Transactions Substantially concurrently with or prior to the consummation of the Merger, the Existing CEQP Credit Agreement shall have been consummated repaid in full and all commitments related thereto shall have been terminated, and all liens or other security interests relating thereto shall have been terminated or released.
(j) The Administrative Agent shall have received a manner consistent with certificate signed by a Responsible Officer of the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided Borrower as to the Lenders prior matters set forth in clauses (e), (h) and (i) of this Section 4.02.
(k) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent at least 10 days in advance of the Closing Date.
(l) The Administrative Agent shall have received flood hazard determinations and evidence of flood insurance, to the extent required by Section 5.02(c).
(m) The Administrative Agent shall have received the financial statements referenced in Sections 3.05(a), (b) and (c) (it being understood the filing of any such financial statements with the SEC or in any public proxy statement shall satisfy the respective delivery requirements in this condition).
(n) The Administrative Agent (or its counsel) shall have received from Crestwood Equity Partners either (a) a counterpart of the Parent Guarantee signed on behalf of Crestwood Equity Partners or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of the Parent Guarantee) that Crestwood Equity Partners has signed a counterpart of the Parent Guarantee.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) This Agreement and each other Loan Document shall be in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent, each Joint Lead Arranger and each Lender and shall have been duly executed by the parties thereto and the Administrative Agent (or its counsel) shall have received from each party thereto either (a) a counterpart of this Agreement and each other Loan Document signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement and each other Loan Document) that such party has signed a counterpart of this Agreement and each other Loan Document.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties, and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special Oklahoma counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel reasonably satisfactory to the Administrative AgentLoan Parties, in each case case, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Loan Party hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement incorporation or limited liability agreementcertificate of formation or other relevant constitutional documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, each certified as of a recent date by the Secretary secretary of State state (or other similar official) of the jurisdiction state of its such Person’s organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary the secretary of State state (or other similar official) or (B) in of the case state of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ’s organization;
(ii) a certificate of the Secretary or Assistant Secretary a Responsible Officer of each Loan Party Party, to be dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, agreement or limited liability company agreement or other equivalent governing documents) of such Loan 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 board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Loan Party is a party and, in the case of a Borrowerif applicable, the borrowings hereunderhereunder and the granting of the Liens contemplated to be granted by each Loan Party under the Security Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, effect,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement certificate of formation, as applicable, of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, ,
(D) as to the incumbency and specimen signature of each officer officer, member or partner (as applicable) of such Person executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer Responsible Officer of each Loan Party as to the incumbency and specimen signature of the Secretary or Assistant Secretary Responsible Officer executing the certificate pursuant to clause (ii) above (which certificate may be included in the certificate delivered pursuant to clause (ii) above); and and
(iv) such Such other customary corporate documents with respect to any Loan Party as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request.
(d) The Administrative Agent shall have received (i) A certificate signed by a Responsible Officer of each Loan Party certifying that as of the Closing Date and after giving effect to the Loans requested to be made on such date the representations and warranties made by such Loan Party are true and correct in all material respects except for representations and warranties that expressly refer to an earlier date which are true and correct in all material respects as of such earlier date and (ii) a certificate of the Borrower signed by a Responsible Officer of the U.S. Borrower, dated Borrower certifying that as of the Closing DateDate and after giving effect to the Loans requested to be made on such date and the application of the proceeds therefrom, confirming compliance with (A) no Default or Event of Default has occurred and is continuing or will have occurred and be continuing and (B) as to the conditions precedent matters set forth in paragraphs clause (bh) and (c) of Section 4.01 and paragraph (q) of this Section 4.02below.
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of tax and judgment lien searches and a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided ;
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit E and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and of the Borrower and its Subsidiaries on a consolidated basis, in each case, after giving effect to the Transactions.
(h) There shall not have been, since December 31, 2010, any event or circumstance that has had, or would reasonably be expected to have, a Material Adverse Effect.
(i) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced on or before two Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP and local counsel in any jurisdiction that it is not practicable (wthe Administrative Agent deems relevant in respect of the transactions contemplated under this Agreement) for required to be reimbursed or paid by the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) hereunder or under any Loan Document. All such amounts will be paid with proceeds of the Collateral Loans made on the Closing Date and Guarantee Requirement will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Closing Date.
(j) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Existing Credit Facilities have been or concurrently with respect the Closing Date are being terminated, all Liens securing obligations under the Existing Credit Facilities have been or concurrently with the Closing Date are being released and all amounts outstanding thereunder have been (or will be with the proceeds of the Loans on Closing Date) paid in full (such evidence to intercompany Indebtednessinclude a payoff letter and release of security interests from each agent, trustee or other representative of any Existing Credit Facilities, which payoff letter and release shall be in form and substance reasonably satisfactory to the Administrative Agent).
(xk) for The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Foreign Subsidiaries Borrower as to the matters set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), in clauses (e), (f) and (gh) of this Section 4.02.
(l) All requisite Governmental Authorities and third parties shall have approved or consented to the Collateral Transactions, and Guarantee Requirementthere shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain or prevent the Transactions and copies of all such approvals shall have been delivered to the Lenders.
(ym) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(gAt least five (5) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case Business Days prior to the Closing Date, such requirements may the Administrative Agent shall have received from the Borrower a financial model which includes the income statements, balance sheets and cash flow statements for each business segment and business unit consolidating to the Borrower and its Subsidiaries, to the Restricted Subsidiaries and to the Unrestricted Subsidiaries, in each case, containing projections of revenue, expenses and cash flows over a period ending no earlier than the Term Loan B Maturity Date, which shall be satisfied after in form and substance satisfactory to the Closing Date in accordance with Section 5.10(g)Lenders. The model shall also include the calculation of EBITDA, Excess Cash Flow, the Interest Coverage Ratio and the Leverage Ratio through the projection period.
(fn) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
Closing Date (i) The other Transactions shall have been consummated in a manner consistent with audited annual consolidated financial statements of the sources and uses shown on Borrower for the pro forma capitalization dated February 13, 2003, provided to the Lenders last two (2) fiscal years ending at least ninety (90) days prior to the Closing Date, (ii) for fiscal periods after the end of the last such year, unaudited consolidated quarterly financial statements of the Borrower for each fiscal quarter ending at least forty five (45) days prior to the Closing Date and (iii) consolidating balance sheets of the Borrower and related statements of operations for the year ended December 31, 2010 and the quarter ended March 31, 2011. The Administrative Agent shall have received correct and complete copies of the pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of the Closing Date, prepared after giving effect to the transactions contemplated hereby and by the other Loan Documents to occur on the Closing Date.
(o) Each Lender shall have received at least five (5) Business Days prior to the Closing Date all documentation and other written information requested by the Administrative Agent and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(p) (i) Except with respect to Mortgaged Property, the Collateral Agent shall have been granted on the Closing Date, for the benefit of the Secured Parties, first priority perfected Liens on the Collateral (subject only to Permitted Liens). The Pledged Collateral shall have been duly and validly pledged under the Collateral Agreement to the Collateral Agent, for the benefit of the Secured Parties, and certificates representing the Pledged Collateral, accompanied by instruments of transfer indorsed in blank, shall be in the actual possession of the Collateral Agent.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include by electronic means transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local and specialist counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) if available from an official in the case of a corporationsuch jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (Dv) 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 Loan Party and Party,
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; , and
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (ivvii) such other documents as the Administrative Agent, Agent and the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida and/or the jurisdiction in which such Loan Parties Party is formed and existing and lien searches of any other office or jurisdiction in which the jurisdictions contemplated by the Perfection Certificates Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that that, to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than execution and delivery of the Collateral Agreement, the Subsidiary Guarantor Pledge Agreement and any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement, the registration or recording of the Vessel Mortgage in the appropriate ship registry or the delivery of stock certificates or other instruments representing Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in and the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior Security Document giving rise to the security interest therein) is not able to be provided on the Closing DateDate after the Borrower’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)5.10.
(e) The Lenders shall have received the financial statements and interim financial reports referred to in Section 3.05.
(f) The Administrative Agent Lenders shall have received copies of, or an insurance broker's or agent's a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit C and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Borrower confirming the solvency of the Borrower and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insuredconsolidated basis, in form and substance satisfactory each case, after giving effect to the Administrative AgentTransactions on the Closing Date.
(g) The Initial Lenders Agents shall be reasonably satisfied with have received all fees payable thereto or to any Arranger or Lender on or prior to the material terms of Closing Date and, to the Purchase Agreement and extent invoiced, all other material agreements amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out‑of‑pocket expenses (including reasonable and documented fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇ (Bermuda) Limited, ▇▇▇▇▇▇▇ Global, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be entered into in connection with reimbursed or paid by the Transactions, including Loan Parties hereunder or under any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationLoan Document.
(h) The Stock Purchases Administrative Agent and/or Collateral Agent (as appropriate) shall have been consummated or shall be consummated simultaneously received insurance certificates, endorsements, copies of cover notes and certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the initial Credit Event under requirements of Section 5.02 (including any such items also covered in clause (iv) of paragraph (k) of this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheldSection 4.02).
(i) (i) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti‑money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(j) [reserved].
(k) The Collateral Agent shall have received:
(i) evidence that the Vessel Mortgage has been duly executed and delivered by the Subsidiary Guarantor and duly registered in accordance with the laws of the Bahamas and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage and subsisting Lien securing the Obligations on the Mortgaged Vessel described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) a Transcript of Register issued by The Bahamas Maritime Authority stating that the Mortgaged Vessel is owned by the Subsidiary Guarantor and that there are of record no liens or other encumbrances on the Mortgaged Vessel except the Vessel Mortgage in favor of the Collateral Agent and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the Vessel Mortgage, to the effect that the Mortgaged Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the Mortgaged Vessel naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, and the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings the Loan Parties in form and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) local counsel substance reasonably satisfactory to the Administrative Agent, in each case Agent (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Loan Party hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: following:
(i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary Secretary, or the general partner, managing member or sole member, of each such Loan Party; and
(ii) a certificate of the Secretary Secretary, Assistant Secretary, Director, Vice President, President or Assistant Secretary similar officer, or the general partner, managing member or sole member, of each Loan Party Party, in each case dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan 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 board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, ,
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that that, to the extent that it any lien search or Collateral (including the creation, perfection or priority of any security interest) is not practicable or cannot be provided on the Closing Date (wother than (i) for UCC, tax and judgment lien searches, (ii) the pledge and perfection of domestic assets with respect to which a lien may be perfected by the filing of financing statements under the UCC or (iii) to the extent applicable, the delivery of equity certificates of the Company and any domestic Subsidiaries of the Loan Parties specified on Schedule 5.10(gand related stock or other powers) after use of commercially reasonable efforts to satisfy paragraph (e) do so then the provision of any such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Collateral and Guarantee Requirement Term Loan Facility on the Closing Date, but a perfected security interest shall instead be required in accordance with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(fe) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Transactions shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law and the Purchase Acquisition Agreement and all other related documentation (without giving effect to any material amendment, modification or waiver or other modification thereof which is adverse to the Lenders not approved (as reasonably determined by the Administrative Agent) without the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed)), including each of the following:
(i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement;
(ii) The Equity Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; provided, that, to the extent all or any portion of the Equity Financing is not comprised of common equity, the terms and conditions of the Equity Financing shall be reasonably satisfactory in all material respects to the Joint Lead Arrangers and the Administrative Agent;
(iii) The Sponsors shall have contributed additional cash common equity to the Borrower in an amount equal to the Initial LendersInterest Payment Amount; and
(iv) The Lenders shall have received:
(A) the financial statements referred to in Section 3.05; and
(B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement.
(f) After giving effect to the Transactions and the other transactions contemplated hereby, such approval the Borrower and the Company shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower after giving effect to the Transactions.
(h) Except as set forth in (i) the Seller Disclosure Schedules (as defined in the Acquisition Agreement), subject to the provisions of Section 13.11 of the Acquisition Agreement or (ii) the KGS SEC Documents (as defined in the Acquisition Agreement) that are publicly available prior to the date of the Commitment Letter (excluding any forward looking disclosures set forth in any risk factor section, any disclosures in any section relating to forward looking statements and any other disclosures included therein to the extent they are predictive or forward-looking in nature, in each case that are general in nature and do not unreasonably to be withheldcontain a reasonable level of detail about the specific risk of which they warn), there has not been any Material Adverse Effect since December 31, 2009.
(i) The other Transactions Agents shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided received all fees payable thereto or to any Lender or to the Lenders Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(j) The (x) Specified Representations and (y) Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date.
(k) The Administrative Agent shall have received evidence reasonably satisfactory to it that all Liens on any Collateral also subject to a security interest securing obligations under the Parent Credit Facilities, and any guarantees made by the Company or General Partner in connection with the Parent Credit Facilities, have been or concurrently with the Closing Date are being released.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02.
(m) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent at least 10 days in advance of the Closing Date.
Appears in 1 contract
First Credit Event. On the Closing First Restatement Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing First Restatement Effective Date, a favorable written opinion (or opinions) of (i) ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing First Restatement Effective Date, (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person’s jurisdiction of incorporation) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing First Restatement Effective Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-by laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing First Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, ,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing First Restatement Effective Date, ,
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing First Restatement Effective Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the First Restatement Effective Date shall have been satisfied and the Administrative Agent shall have received completed such updates to the Perfection Certificates dated Certificate delivered under the Closing Date and signed Original Credit Agreement as shall have been requested by a Responsible Officer of the U.S. BorrowerAdministrative Agent, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(fe) The Administrative Agent shall have received copies ofa certificate in the form of Exhibit B hereto signed by the Chief Financial Officer of the Borrower.
(f) The Borrower shall have received gross cash proceeds of $625 million from the issuance of additional Senior Secured First Lien Notes and the Administrative Agent shall have received evidence that all loans, accrued interest and fees under the Original Credit Agreement have been or an insurance broker's or agent's certificate as will be repaid on the First Restatement Effective Date and all commitments under the Original Revolving Facility shall have been terminated.
(g) The terms and conditions of the Senior Secured First Lien Notes, (including terms and conditions relating to coverage underthe interest rate, the insurance policies required by Section 5.02fees, each of which policies amortization, maturity, covenants, defaults and remedies) shall be endorsed as set forth in the Notes Offering Memorandum or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Lenders shall have been consummated or shall be consummated simultaneously with received the initial Credit Event under this Agreement financial statements referred to in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Section 3.05.
(i) The On the First Restatement Effective Date, after giving effect to the Transactions and the other Transactions transactions contemplated hereby, Holdings shall have been consummated outstanding no Indebtedness and the Borrower and the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Unsecured Notes, (iii) the Senior Unsecured Toggle Notes, (iv) the Senior Subordinated Notes, (v) the Senior Secured First Lien Notes, (vi) the Senior Secured Second Lien Notes and (vii) other Indebtedness permitted pursuant to Section 6.01.
(j) The Borrower shall have paid to the Administrative Agent, for the account of each Lender party hereto, the upfront fee separately agreed in a manner consistent with writing between the sources Lenders and uses shown on the pro forma capitalization dated February 13Borrower.
(k) The Administrative Agent shall have received evidence that, 2003to the extent invoiced, provided all reasonable out of pocket expenses (including reasonable fees, charges and disbursements of counsel to the Lenders and the Administrative Agent approved by the Borrower) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(l) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing DateFirst Restatement Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include by electronic means transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local and specialist counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) if available from an official in the case of a corporationsuch jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (Dv) 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 Loan Party and Party,
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; , and
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (ivvii) such other documents as the Administrative Agent, Agent and the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida and/or the jurisdiction in which such Loan Parties Party is formed and existing and lien searches of any other office or jurisdiction in which the jurisdictions contemplated by the Perfection Certificates Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that that, to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than execution and delivery of the Collateral Agreement, the Subsidiary Guarantor Pledge Agreement and any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement, the registration or recording of the Vessel Mortgage in the appropriate ship registry or the delivery of stock certificates or other instruments representing Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in and the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior Security Document giving rise to the security interest therein) is not able to be provided on the Closing DateDate after the Borrower’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)5.10.
(e) The Lenders shall have received the financial statements and interim financial reports referred to in Section 3.05.
(f) The Administrative Agent Lenders shall have received copies of, or an insurance broker's or agent's a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit C and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Borrower confirming the solvency of the Borrower and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insuredconsolidated basis, in form and substance satisfactory each case, after giving effect to the Administrative AgentTransactions on the Closing Date.
(g) The Initial Lenders Agents shall be reasonably satisfied with have received all fees payable thereto or to any Arranger or Lender on or prior to the material terms of Closing Date and, to the Purchase Agreement and extent invoiced, all other material agreements amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇ (Bermuda) Limited, ▇▇▇▇▇▇▇ Global, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be entered into in connection with reimbursed or paid by the Transactions, including Loan Parties hereunder or under any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationLoan Document.
(h) The Stock Purchases Administrative Agent and/or Collateral Agent (as appropriate) shall have been consummated or shall be consummated simultaneously received insurance certificates, endorsements, copies of cover notes and certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the initial Credit Event under requirements of Section 5.02 (including any such items also covered in clause (iv) of paragraph (k) of this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheldSection 4.02).
(i) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(j) [reserved].
(k) The Collateral Agent shall have received:
(i) evidence that the Vessel Mortgage has been duly executed and delivered by the Subsidiary Guarantor and duly registered in accordance with the laws of the Bahamas and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage and subsisting Lien securing the Obligations on the Mortgaged Vessel described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) a Transcript of Register issued by The Bahamas Maritime Authority stating that the Mortgaged Vessel is owned by the Subsidiary Guarantor and that there are of record no liens or other encumbrances on the Mortgaged Vessel except the Vessel Mortgage in favor of the Collateral Agent and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the Vessel Mortgage, to the effect that the Mortgaged Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the Mortgaged Vessel naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇O’Melveny & M▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings the Loan Parties, in form and the U.S. Borrower, substantially substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, otherwise (i) certified by the Secretary or Assistant Secretary of each such Loan Party; Party or other person duly authorized by the constituent documents of such Loan Party or (ii) otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a Borrowerthe Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation or other equivalent constituent and governing documents of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of Holdings and the U.S. BorrowerBorrowers, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that that, to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement or the delivery of stock certificates or other instruments representing Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in and the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior security agreement giving rise to the security interest therein) is not able to be provided on the Closing DateDate after the Borrowers’ use of commercially reasonable efforts to do so, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)5.10.
(fe) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Merger shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law and on the Purchase Agreement terms and all other related documentation (conditions of the Merger as set forth in the Merger Documents, without giving effect to any amendment, waiver or other modification thereof that is materially adverse to the interests of the Lenders without the prior written consent of the Administrative Agent.
(f) The Equity Financing shall have been consummated.
(g) The Borrowers shall have received gross cash proceeds of not approved by less than (i) $485.0 million from the Initial Lendersissuance of the Senior Unsecured Notes and (ii) $300.0 million from the incurrence of the issuance of the Senior Subordinated Notes.
(h) The terms and conditions of the Senior Unsecured Notes and the Senior Subordinated Notes (including terms and conditions relating to the interest rate, such approval not unreasonably fees, amortization, maturity, subordination (in the case of the Senior Subordinated Notes), covenants, defaults and remedies) shall be as set forth in the Senior Unsecured Notes Indenture and the Senior Subordinated Notes Indenture or otherwise reasonably satisfactory to be withheld)the Administrative Agent.
(i) The other Transactions Target shall have purchased, or caused to be purchased, each of the issued and outstanding Existing Senior Subordinated Notes validly tendered and not withdrawn in the Debt Tender Offer and, to the extent not all the Existing Senior Subordinated Notes shall have been consummated so purchased, the requisite consents in a manner consistent connection with the sources Consent Solicitation shall have been obtained, and uses shown the Existing Senior Subordinated Notes Indenture shall have been amended pursuant to an effective supplemental indenture that removes the significant negative covenants therefrom.
(j) All amounts due or outstanding in respect of the Existing Credit Agreement shall have been (or substantially simultaneously with the closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof and security therefor discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrowers and the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Unsecured Notes, (iii) the Senior Subordinated Notes, and (iv) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and signed by a Financial Officer of the Borrowers confirming the solvency of Borrowers and their Subsidiaries on a consolidated basis after giving effect to the Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(n) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Cravath, Swaine & M▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(o) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of the Agreement.
(p) The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Rexnord Corp)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, Agent and the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇O’Melveny & ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case case, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Dateto, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date’s counsel.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a Borrowerthe Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(h) and/or as contemplated by the Post-Closing Collateral Requirements, the elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. BorrowerBorrowers, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that .
(e) On the Closing Date, after giving effect to the Transactions which are to be completed on or prior to such date and the other transactions contemplated hereby, the Borrowers and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(f) The Lenders shall have received a solvency certificate substantially in the form of Exhibit B and signed by the Chief Financial Officer of each Borrower confirming the solvency of the Borrowers and their Subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date.
(g) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent that it is not practicable (w) for invoiced, all other amounts due and payable pursuant to the Loan Parties specified Documents on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP, SNR ▇▇▇▇▇▇ US LLP and ▇▇▇▇▇ and ▇▇▇▇ LLP) required to be satisfied after reimbursed or paid by the Closing Date in accordance with Section 5.10(g)Loan Parties hereunder or under any Loan Document.
(fh) The Administrative Agent shall have received copies ofall documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, or an insurance broker's or agent's certificate as to coverage underincluding without limitation, the insurance policies required by Section 5.02, each USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date.
(i) The Administrative Agent shall have received executed copies of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement the Lease Agreements and to name the Collateral Agent as additional insuredLease Guaranty, in each case in a form and substance reasonably satisfactory to the Administrative Agent.
(gj) The Initial Lenders Either (x) the Contributed Assets with respect to Project Octavius shall be reasonably satisfied with have been contributed to the material terms Octavius Borrower or (y) an amount of the Purchase Agreement Cash Contributions equal to the aggregate amount of fees and all other material agreements to be entered into expenses due and payable on the Closing Date by the Borrowers shall have been deposited in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationCompany Account.
(hk) The Stock Purchases Administrative Agent shall have been consummated or received the executed copy of (x) the Completion Guarantee and (y) the Asset Contribution Agreements. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be consummated simultaneously deemed to have consented to, approved or accepted or to be satisfied with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver each document or other modification adverse matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders not approved unless an officer of the Administrative Agent responsible for the transactions contemplated by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions Loan Documents shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders received notice from such Lender prior to the Closing DateDate specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or PDF transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) duly executed copies (or facsimile or PDF copies) of the Guarantee and Collateral Agreement, the IP Security Agreements and any promissory notes requested, at least two Business Days prior to the Closing Date, by a Lender pursuant to Section 2.04(e) payable to each such requesting Lender and its registered assigns.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M and (ii) the General Counsel of the Borrower, and (iii) each local counsel reasonably satisfactory to the Administrative Agentlisted on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders Lenders, and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its requests such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: (i) a copy of the certificate or articles of incorporation, partnership agreement certificate of formation or limited liability agreementother constitutive document, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar or, in each case, a comparable governmental official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Partyif available); (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (laws, or operating, management or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 board of Directors (directors, board of managers or equivalent members of other governing body) , as applicable, of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Dateeffect, (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement other constitutive document of such Loan Party have not been amended since the date of the last amendment thereto disclosed 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 such Loan Party and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrowercertificate, dated the Closing DateDate and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.024.01.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses (including the reasonable fees, disbursements and other charges of legal counsel) required to be reimbursed or paid by any Loan Party to the Administrative Agent or any Arranger incurred in connection with the Transactions.
(f) The Guarantee and Collateral Agreement shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in the Guarantee and Collateral Agreement.
(g) Each document (including any Uniform Commercial Code financing statements) required by the Security Documents or under law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Lenders and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Liens permitted under Section 6.02 other than Sections 6.02(b), 6.02(j), 6.02(l) (other than Indebtedness incurred pursuant to Section 6.02(l) expressly permitted to be secured on a pari passu basis with the Loans) and 6.02(r)), shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recordation. The Collateral Agent shall have received all Pledged Collateral required to be delivered to the Collateral Agent pursuant to the Guarantee and Collateral Agreement, together with undated proper instruments of assignment duly executed by the applicable Loan Party in blank and such other instruments or documents as the Collateral Agent may reasonably request.
(h) The Administrative Agent and the Collateral Agent shall have received a Perfection Certificates Certificate with respect to the Loan Parties dated the Closing Date and signed duly executed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and shall have received the results of a recent lien search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by states (or other jurisdictions) of formation of such Persons and, with respect to tax lien searches only, in which the chief executive office of each such Person is located, in each case as indicated on such Perfection Certificates and Certificate, together with copies of the financing statements (or similar documents) disclosed by such search search, and accompanied by evidence reasonably satisfactory to the Administrative Collateral Agent that the Liens indicated by in any such financing statements statement (or similar documentsdocument) are would be permitted by under Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement will be contemporaneously released or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)terminated.
(fi) The Administrative Agent shall have received copies a copy of, or an insurance broker's or agent's a certificate as to coverage under, the insurance policies required by Section 5.025.02 and the applicable provisions of the Security Documents, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" customary lender's ’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(gj) The Initial Lenders Administrative Agent shall be reasonably satisfied with have received a certificate from the material terms chief financial officer of the Purchase Agreement Borrower, in form and all other material agreements substance reasonably satisfactory to be entered into in connection with the Administrative Agent, to the effect that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Considerationare solvent.
(hk) The Stock Purchases Merger shall have been consummated and BATS shall have become a Wholly-Owned Subsidiary of the Borrower. The Administrative Agent shall have received a copy of the Merger Agreement, certified by a Financial Officer or shall be consummated simultaneously other executive officer of the Borrower as being complete and correct together with all closing certificates, opinions and other closing documents delivered in satisfaction of the closing conditions set forth in the Merger Agreement.
(l) Prior to or, pursuant to arrangements reasonably satisfactory to the Administrative Agent, substantially contemporaneously with the initial funding of the Loans on the Closing Date, (i) the Repayment shall have occurred, (ii) all commitments under the Existing Credit Event Agreement shall have been terminated, (iii) all guarantees and Liens granted in respect of the Existing Credit Agreement shall have been released and (iv) all guarantees and Liens incurred by the Direct Edge and its subsidiaries (other than guarantees and Liens created by the Guarantee and Collateral Agreement) will be released. The Administrative Agent shall have received payoff and release letters with respect to the Existing Credit Agreement and the obligations and Liens (if any) relating thereto, in form and substance reasonably satisfactory to the Administrative Agent, and the conditions to effectiveness of such letters shall have been satisfied. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no indebtedness for borrowed money or preferred stock other than (a) Indebtedness incurred under this Agreement in accordance with applicable law and the Purchase Agreement (b) Indebtedness permitted under Section 6.01(a), 6.01(c), 6.01(f), 6.01(i), 6.01(k), 6.01(l), 6.01(m), 6.01(n), 6.01(o), and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld6.01(q).
(im) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders extent requested at least five days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Notwithstanding the foregoing, if the conditions relating to the receipt of Pledged Collateral set forth in clause (g) of this Section 4.02 are not satisfied as of the Closing Date such conditions shall not be a condition precedent to the effectiveness of this Agreement on the Closing Date and shall not be a condition to the funding of the Credit Event on the Closing Date, but shall be accomplished as promptly as practicable after the Closing Date and in any event within the period specified on Schedule 5.12 or such later date as the Administrative Agent may agree to in its sole discretion.
Appears in 1 contract
First Credit Event. On Other than as specified in Section 4.03, on the Closing Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Effective Date, a favorable written opinion of (i) G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. BorrowerCompany, substantially in form and substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local U.S. counsel reasonably satisfactory to the Administrative Agent, Agent as may be reasonably requested by the Administrative Agent in each case (A) dated the Closing Effective Date, (B) addressed to each Issuing Bank on the Closing Effective Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions Transaction as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Company hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Person that is a Loan Party on the Effective Date each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, memorandum and articles of association, partnership agreement or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing under the jurisdiction of its organization (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the manager, Secretary or Assistant Secretary or other appropriate officer of each such Loan Party; ;
(ii) a certificate of the manager, director, Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Effective Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, ,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of a Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Effective Date, ,
(C) that the certificate or articles of incorporation, memorandum and articles of association, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer officer, director or attorney-in-fact as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative AgentAgent shall have reasonably requested (including, the Lenders without limitation, tax identification numbers and any Issuing Bank on the Closing Date may reasonably requestaddresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement Requirements required to be satisfied as of the Effective Date shall have been satisfied or waived and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Effective Date and signed by a Responsible Officer of the U.S. Borrowereach Loan Party, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the each Loan Parties Party in the jurisdictions contemplated by the Perfection Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or will promptly be released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders prior to the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include by electronic means transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, itself and the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local and specialist counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) below: certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) if available from an official in the case of a corporationsuch jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or ),
(B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan 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 (Biv) below, ,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (Dv) 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 Loan Party and Party,
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; , and
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (ivvii) such other documents as the Administrative Agent, Agent and the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida and/or the jurisdiction in which such Loan Parties Party is formed and existing and lien searches of any other office or jurisdiction in which the jurisdictions contemplated by the Perfection Certificates Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that that, to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than execution and delivery of the Collateral Agreement, the Borrower Pledge Agreement and any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement, the registration or recording of the Vessel Mortgage in the appropriate ship registry or the delivery of stock certificates or other instruments representing Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in and the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior Security Document giving rise to the security interest therein) is not able to be provided on the Closing DateDate after the Borrower’s use of commercially reasonable efforts to do so, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g)5.10.
(e) The Lenders shall have received the financial statements and interim financial reports referred to in Section 3.05.
(f) The Administrative Agent Lenders shall have received copies of, or an insurance broker's or agent's a solvency certificate as to coverage under, substantially in the insurance policies required form of Exhibit C and signed by Section 5.02, each a Financial Officer of which policies shall be endorsed or otherwise amended to include the Company confirming the solvency of the Company and its Subsidiaries on a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insuredconsolidated basis, in form and substance satisfactory each case, after giving effect to the Administrative AgentTransactions on the Closing Date.
(g) The Initial Lenders Agents shall be reasonably satisfied with have received all fees payable thereto or to any Arranger or Lender on or prior to the material terms of Closing Date and, to the Purchase Agreement and extent invoiced, all other material agreements amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, A▇▇▇▇▇▇ (Bermuda) Limited, A▇▇▇▇▇▇ Global, H▇▇▇▇ & J▇▇▇▇▇▇ and W▇▇▇▇▇ ▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be entered into in connection with reimbursed or paid by the Transactions, including Loan Parties hereunder or under any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationLoan Document.
(h) The Stock Purchases Administrative Agent and/or Collateral Agent (as appropriate) shall have been consummated or shall be consummated simultaneously received insurance certificates, endorsements, copies of cover notes and certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the initial Credit Event under requirements of Section 5.02 (including any such items also covered in clause (iv) of paragraph (k) of this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheldSection 4.02).
(i) The other Transactions Lenders shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13received, 2003, provided to the Lenders at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Company at least 10 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(j) [Reserved].
(k) The Collateral Agent shall have received:
(i) evidence that the Vessel Mortgage has been duly executed and delivered by the Borrower and duly registered in accordance with the laws of the Bahamas and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage and subsisting Lien securing the Obligations on the Mortgaged Vessel described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) a Transcript of Register issued by The Bahamas Maritime Authority stating that the Mortgaged Vessel is owned by the Borrower and that there are of record no liens or other encumbrances on the Mortgaged Vessel except the Vessel Mortgage in favor of the Collateral Agent and other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the Vessel Mortgage, to the effect that the Mortgaged Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the Mortgaged Vessel naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with the letters of undertaking required by the relevant Security Documents;
Appears in 1 contract
Sources: Incremental Assumption Agreement (Norwegian Cruise Line Holdings Ltd.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, Agent and the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case case, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Dateto, the Administrative Agent, the Collateral Agent and the Lenders on the Closing Date and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date’s counsel.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporationcorporation or limited liability company, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability companypartnership, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(h), the elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that .
(e) On the Closing Date, after giving effect to the Transactions which are to be completed on or prior to such date and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(f) The Lenders shall have received a solvency certificate substantially in the form of Exhibit B and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis on the Closing Date after giving effect to the Transactions to occur on the Closing Date.
(g) Each of the Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent that it is not practicable invoiced at least one (w1) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case Business Day prior to the Closing Date, such requirements may be satisfied after all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date in accordance with Section 5.10(g)Date, including, to the extent invoiced at least one (1) Business Day prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(fh) The Administrative Agent shall have received copies ofall documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, or an insurance broker's or agent's certificate as to coverage underincluding without limitation, the insurance policies required by Section 5.02USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date.
(i) The Administrative Agent shall have received executed copies of the Completion Guarantees, the FF&E Agreement (and the security document and financing statements in connection therewith) and the FF&E Intercreditor Agreement, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(gj) The Initial Lenders Borrower shall be reasonably satisfied with have (i) received the material terms Closing Date Equity Contribution and (ii) obtained commitments in respect of the Purchase Agreement and all other material agreements to be entered into FF&E Facility in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders an aggregate amount of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Considerationnot less than $30.0 million.
(hk) The Stock Purchases Administrative Agent shall have been consummated or received the results of a recent lien, bankruptcy and judgment search in each relevant jurisdiction with respect to the Loan Parties and such search shall be consummated simultaneously with reveal no Liens on any of the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver Collateral or other modification adverse to assets of the Lenders not approved by the Initial Lenders, such approval not unreasonably Loan Parties except for Permitted Liens and except for Liens to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown discharged on the pro forma capitalization dated February 13, 2003, provided to the Lenders or prior to the Closing DateDate pursuant to documentation reasonably satisfactory to the Administrative Agent.
(l) The Term B Facility shall have received a corporate credit rating from each of ▇▇▇▇▇’▇ and S&P.
(m) The Administrative Agent shall have received Plans and Specifications and GMP contracts (including, for the avoidance of doubt, with respect to the casino and the parking garage) in respect of the Development covering at least 70% (or such lesser percentage as agreed to by the Administrative Agent) of the Hard Costs (as defined in the Disbursement Agreement) and otherwise reasonably satisfactory to the Construction Consultant and the Administrative Agent.
(n) The Maryland Department of Environment shall have approved the final Response Action Plan with respect to the Development (the “RAP”) pursuant to the currently ongoing public participation and administrative review process as of the Allocation Date and the estimated cost of fully implementing the RAP shall not be projected to exceed $4.0 million, in the good faith determination of the Borrower, or, if such estimated cost shall be projected to exceed $4.0 million, the Borrower shall be in compliance with the In-Balance Test as of the Closing Date after giving effect to (i) an increase in the amount of the required Closing Date Equity Contribution and/or decrease in the amount of the Required Contingency (as defined in the Disbursement Agreement) (such decrease not to exceed $2.0 million) and (ii) such increased estimated cost.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially in form and substance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local U.S. counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited partnership of or limited liability company, certified by the Secretary secretary or Assistant Secretary assistant secretary of each such Loan Party; ;
(ii) a certificate of the Secretary secretary or Assistant Secretary assistant secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or limited partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released; provided that to the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph .
(e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).
(f) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably satisfied with the material terms of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the initial Credit Event closing under this Agreement in accordance with applicable law the terms and conditions of the Purchase Agreement and all other related documentation (Acquisition as set forth in the Acquisition Documents, without giving effect to any material amendment, modification or waiver or other modification thereof which is materially adverse to the Lenders without the prior written consent of the Joint Lead Arrangers.
(f) Holdings shall have received gross proceeds of not approved by less than $163.6 million from the Initial LendersEquity Financing. Holdings shall have contributed all net cash proceeds of the Equity Financing to the Borrower in the form of common equity.
(g) The Borrower shall have received net cash proceeds from the issuance of $275 million of Senior Subordinated Notes pursuant to the Senior Subordinated Note Indenture.
(h) The terms and conditions of the Senior Subordinated Notes (including terms and conditions relating to the interest rate, such approval not unreasonably fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to be withheld)the Agents.
(i) The other Transactions Lenders shall have been consummated received the financial statements referred to in Section 3.05.
(j) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Subordinated Notes and (iii) other Indebtedness permitted pursuant to Section 6.01.
(k) The Lenders shall have received a manner consistent with solvency certificate substantially in the sources form of Exhibit F and uses shown signed by the Chief Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(l) All requisite governmental authorities and third parties shall have approved or consented to the Lenders Transactions and the other transactions comtemplated hereby to the extent required, and all applicable waiting periods shall have expired.
(m) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(n) The Facilities shall have received a rating from S&P and ▇▇▇▇▇’▇.
(o) The ratio of (i) pro forma consolidated Indebtedness of the Borrower and its Subsidiaries as of the Closing Date (after giving effect to the Transactions but excluding any Revolving Facility Borrowings on the Closing Date), to (ii) pro forma consolidated EBITDA of the Borrower and its Subsidiaries for the four-fiscal quarter period most recently ended prior to the Closing Date for which financial statements are required to be delivered pursuant to Section 4.02(i) and calculated in accordance with Schedule 1.01(b) shall not be greater than 6.00 to 1.00.
(p) All representations and warranties of each Loan Party set forth in the Acquisition Agreement shall have been true and correct in all material respects as of the time such representations and warranties were made and shall be true and correct in all material respects as of the Closing Date as if such representations and warranties were made on and as of such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(q) The Transaction Costs shall not exceed $70 million.
(r) The Agents shall have received, at least five Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Act (as defined in Section 9.19). Each Agent and each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing Date shall be deemed to have acknowledged receipt of and consented to and approved each Loan Document and each other document required to be approved by any Agent or Lender, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (PQ Systems INC)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, Agent and the Lenders and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, substantially to the effect set forth in Exhibit M Loan Parties and (ii) each local counsel reasonably satisfactory to the Administrative Agentspecified on Schedule 4.02(b), in each case case, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders on the Closing Date and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be substance reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date’s counsel.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner partner, managing member or managing memberequivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement certificate of limited partnership, articles of incorporation or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer Except for matters to be completed following the Closing Date in accordance with Section 5.10(h) and/or as contemplated by the Post-Closing Collateral Requirements, the elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that .
(e) On the Closing Date, after giving effect to the Transactions which are to be completed on or prior to such date and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(f) The Lenders shall have received a solvency certificate substantially in the form of Exhibit B and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date.
(g) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent that it is not practicable invoiced at least one (w1) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case Business Day prior to the Closing Date, such requirements may be satisfied after all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date in accordance with Section 5.10(g)Date, including, to the extent invoiced at least one (1) Business Day prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(fh) The Administrative Agent shall have received copies ofall documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, or an insurance broker's or agent's certificate as to coverage underincluding without limitation, the insurance policies required by Section 5.02, each USA PATRIOT Act that has been requested not less than five (5) Business Days prior to the Closing Date.
(i) The Administrative Agent shall have received executed copies of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement (i) the Master Lease Agreement and to name (ii) the Collateral Agent as additional insuredLease Guaranty, in each case in a form and substance reasonably satisfactory to the Administrative Agent.
(gj) The Initial Lenders Administrative Agent shall have received an executed copy of the Completion Guarantee. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the material terms of the Purchase Agreement and all each document or other material agreements matter required thereunder to be entered into in connection with the Transactions, including any stockholder agreement consented to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver approved by or other modification adverse acceptable or satisfactory to the Lenders not approved unless an officer of the Administrative Agent responsible for the transactions contemplated by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions Loan Documents shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders received notice from such Lender prior to the Closing DateDate specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion (or opinions) of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Morgan, Lewis & ▇▇Bockius LLP, special New York counsel for the Loan P▇▇▇▇▇▇, special counsel for Holdings and the U.S. Borrower, substantially ▇▇ ▇▇rm ▇▇▇ ▇▇▇stance reasonably satisfactory to the effect set forth in Exhibit M Administrative Agent and (ii) local counsel reasonably satisfactory to the Administrative AgentAgent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in form and substance reasonably satisfactory to the form of Exhibit N Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: :
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person's jurisdiction of incorporation) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; ;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan 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 equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, certificate of limited partnership agreement or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably requestrequest (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a certificate of a Responsible Officer elements of the U.S. Borrower, dated the Closing Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower's use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. Borrower, together with all attachments contemplated thereby, including and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to released concurrently with the extent that it is not practicable (w) for closing of the Loan Parties specified Transactions and all fundings pursuant thereto on Schedule 5.10(g) to satisfy paragraph the Closing Date.
(e) of The Merger shall be consummated substantially concurrently with the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date closing under this Agreement in accordance with Section 5.10(g)the terms and conditions of the Merger Agreement, without material amendment, supplement, modification or waiver thereof which is materially adverse to the Lenders without the prior written consent of the Administrative Agent.
(f) The Administrative Agent Equity Financing shall have been consummated.
(g) The Borrower shall have received copies ofgross cash proceeds of (i) $250 million from the issuance of the Senior Unsecured Notes, or an insurance broker's or agent's certificate as to coverage under(ii) $350 million from the issuance of the Senior Unsecured Toggle Notes, and (iii) $335 million from the issuance of the Senior Subordinated Notes.
(h) The terms and conditions of the Senior Unsecured Notes, the insurance policies required by Section 5.02Senior Unsecured Toggle Notes and the Senior Subordinated Notes (including terms and conditions relating to the interest rate, each fees, amortization, maturity, subordination (in the case of which policies the Senior Subordinated Notes), covenants, defaults and remedies) shall be endorsed as set forth in the Notes Offering Memorandum or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(gi) The Initial Lenders shall be reasonably satisfied with have received the material terms of the Purchase Agreement and all other material agreements financial statements referred to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock ConsiderationSection 3.05.
(hj) The Stock Purchases shall have been consummated or shall be consummated simultaneously with On the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without Closing Date, after giving effect to any amendmentthe Transactions and the other transactions contemplated hereby, waiver or Holdings shall have outstanding no Indebtedness and the Borrower and the Subsidiaries shall have outstanding no Indebtedness other modification adverse than (i) the Loans and other extensions of credit under this Agreement, (ii) the Senior Unsecured Notes, (iii) the Senior Unsecured Toggle Notes, (iv) the Senior Subordinated Notes, and (v) other Indebtedness permitted pursuant to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld)Section 6.01.
(ik) The other Transactions Lenders shall have been consummated received a solvency certificate substantially in the form of Exhibit B and signed by the Chief Financial Officer of the Borrower confirming the solvency of the Borrower and the Subsidiaries on a manner consistent with consolidated basis after giving effect to the sources and uses shown Transactions on the pro forma capitalization dated February 13, 2003, provided Closing Date.
(l) The Administrative Agent shall have received all fees payable thereto or to any Lender on or prior to the Lenders Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Skadden, Arps, Slate, Meagher & Flom LLP) required to be reimbursed or paid by the Loan Pa▇▇▇▇▇ ▇ere▇▇▇▇r or under any Loan Document.
(m) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(n) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act.
(o) The Borrower shall have used commercially reasonable efforts to (i) have received a corporate credit rating by S&P and a corporate family rating by Moody's and (ii) cause each of the Loans to have received a rating b▇ ▇&▇ ▇nd Moody's. For purposes of determining compliance with th▇ ▇▇▇▇▇tions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender's ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:Date (except with respect to clause (b)(ii) below which shall be delivered subject to the timeframes set forth on Schedule 5.10(g)):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or e-mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received, on behalf of itself, the Collateral Agent, the Lenders L/C Issuer and each Issuing Bank on the Closing DateLenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, special New York counsel for Holdings and the U.S. BorrowerLoan Parties, substantially to the effect set forth in Exhibit M and (ii) each local or foreign counsel specified on Schedule 4.02(b), in each case in form and substance reasonably satisfactory to the Administrative Agent, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) substantially in the form of Exhibit N and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(c) The Administrative Agent (or its counsel) shall have received in the case of with respect to each Loan Party Party, each of the items referred to in clauses (i), (ii), ) and (iii) and (iv) below: :
(i) a copy of the certificate or articles Organization Documents of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, of each such Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar officialofficial to the extent such concept or a similar concept exists under the laws of such jurisdiction) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party (or of the general partner or managing member of such Loan Party; );
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) Organization Documents of such Loan 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 the shareholders or partners (or equivalent governing bodyas applicable) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a the Borrower, the borrowings and credit extensions hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, ,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement Organization Documents of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) 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 Loan Party and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; and
(iii) a certificate of another a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated Except for matters to be completed following the Closing DateDate in accordance with Section 5.10(g), confirming compliance with the conditions precedent set forth in paragraphs (bA) and (c) of Section 4.01 and paragraph (q) of this Section 4.02.
(e) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent (or its counsel) shall have received received:
(i) (x) the Security Documents set forth on Schedule 1.01A from the parties set forth thereon and (y) from each Loan Party, a counterpart of the Guarantee Agreement duly executed and delivered on behalf of such person;
(ii) a completed Perfection Certificates Certificate dated the Closing Date and signed by a Responsible Officer of the U.S. BorrowerParent, together with all attachments contemplated thereby, including ,
(iii) the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment lien filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificates Certificate, lien searches with the United States Patent and Trademark Office, United States Copyright Office and the Trademark Division of the Puerto Rico State Department and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released; provided that to released concurrently with the extent that it is not practicable (w) for the Loan Parties specified on Schedule 5.10(g) to satisfy paragraph (e) closing of the Collateral and Guarantee Requirement with respect to intercompany Indebtedness, (x) for the Foreign Subsidiaries set forth Transactions on Schedule 5.10(g) to satisfy any of paragraphs (a), (e), (f) and (g) of the Collateral and Guarantee Requirement, (y) to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 5.10(g) as provided in the Collateral and Guarantee Requirement or (z) to deliver an opinion of counsel relating to clauses (x) or (y) above, in each case prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(g).and
(fiv) The Administrative Agent shall have received copies of, or an insurance broker's or agent's certificate as to coverage under, the insurance policies required by Section 5.02, each of which policies shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance evidence reasonably satisfactory to the Administrative Agent.
(g) The Initial Lenders shall be reasonably Agent that the Guarantor Coverage Test has been satisfied with the material terms as of the Purchase Agreement and all other material agreements to be entered into in connection with the Transactions, including any stockholder agreement to be entered into between the stockholders of Holdings and the Koyo Purchase Agreement, and the terms of the Stock Consideration.
(h) The Stock Purchases shall have been consummated or shall be consummated simultaneously with the initial Credit Event under this Agreement in accordance with applicable law and the Purchase Agreement and all other related documentation (without giving effect to any amendment, waiver or other modification adverse to the Lenders not approved by the Initial Lenders, such approval not unreasonably to be withheld).
(i) The other Transactions shall have been consummated in a manner consistent with the sources and uses shown on the pro forma capitalization dated February 13, 2003, provided to the Lenders prior to the Closing Date.; and
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Sources: Credit Agreement (EVERTEC, Inc.)