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, PDF 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, 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, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent 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) in form and substance reasonably satisfactory to the 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. (c) 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. (d) 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 (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 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 (including without limitation, tax identification numbers and addresses). (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, tax and judgment (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. (f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent. (g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent. (h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture. (i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent. (j) The Lenders shall have received the financial statements referred to in Section 3.05. (k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP. (l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01. (m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions. (n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008. (o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole. (p) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages. (q) 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. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Nalco Holding CO)
First Credit Event. On The initial Credit Event hereunder (and the Closing Dateobligations of the Lenders and/or the Issuing Bank, as applicable, in respect thereof) shall be subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and each of the other Loan Documents signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy, PDF telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.Agreement and each of the Loan Documents;
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders Issuing Banks and each Issuing Bank on the Closing DateLenders, a the favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Street LLP, special counsel for Holdings and the U.S. Borrower, Borrower in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b)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 Agent, the Issuing Banks and the Lenders and (C) in form and substance reasonably satisfactory to the 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.;
(c) 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.
(d) The Administrative Agent shall have received in with respect to the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) Borrower and (iv) below:
TEP GP (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, Organizational Documents certified to be true and complete as of a recent date by the Secretary of State (or other similar official) appropriate Governmental Authority of the jurisdiction State of its organizationDelaware and certified by a secretary or assistant secretary of the Borrower or TEP GP, as applicable, to be true 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 complete 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;
Closing Date; (ii) a certificate of the Secretary secretary or Assistant Secretary or similar officer assistant secretary of each Loan Party of the Borrower and TEP GP 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 of the Borrower or other equivalent governing documents) of such Loan Party TEP GP, as applicable, 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 other governing body of the Borrower (and, if applicable, any shareholder or equivalent governing body) parent company of such Loan Party (or its managing general partner or managing memberthe Borrower) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a Borrower, and 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 or limited liability agreement organization of such Loan Party each of the Borrower and TEP GP have not been amended since the date of the last amendment thereto disclosed shown on the certificate furnished pursuant to clause (i) above,
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;
Borrower; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary secretary or Assistant Secretary or similar officer assistant secretary executing the certificate pursuant to clause (ii) above; and;
(ivd) such other documents as The Administrative Agent and the Administrative AgentCollateral Agent shall have received, the Lenders and any Issuing Bank on or before the Closing Date may all documents and instruments, including Uniform Commercial Code financing statements required by Law or reasonably request requested by the Collateral Agent (including without limitationto the extent required by the Security Agreement) to be filed, tax identification numbers registered, published or recorded to create or perfect the Liens intended to be created under the Loan Documents and addresses).all such documents and instruments shall have been so filed, registered, published or recorded or other arrangements reasonably satisfactory to the Collateral Agent for such filing, registration, publication or recordation shall have been made;
(e) The Collateral and Guarantee Requirement Administrative Agent shall have received certified copies of the Related Documents, duly executed by the parties thereto;
(f) Prior to or substantially simultaneously with the making of the initial Revolving Loans, the Transactions shall have been satisfied consummated;
(g) The Administrative Agent shall have received (i) the unqualified audited consolidated financial statements of TEP for the fiscal year ended December 31, 2014, (ii) an unaudited pro forma condensed consolidated balance sheet of TEGP as of December 31, 2014 and (iii) an audited consolidated balance sheet of TEGP as of February 10, 2015; provided that the financial statements shall have been prepared in all material respects in accordance with GAAP;
(h) The Administrative Agent shall have received financial projections of TEGP through the third year following the Closing Date which will be prepared on a basis consistent with the financial projections of TEGP delivered to the Arranger prior to the Closing Date;
(i) The Administrative Agent shall have received (i) a Solvency Certificate from a Responsible Officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit K and (ii) a Perfection Certificate from a Responsible Officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit J;
(j) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clause (b) and (c) of Section 4.01 and clauses (f) and (m) of this Section 4.02;
(k) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, at least five (5) Business Days prior to the Closing Date, that has been reasonably requested by any Lender at least ten (10) days in advance of the Closing Date;
(l) The Arranger 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, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans Fees and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement amounts due and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(p) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and(which, in the case of fees for the account of the Lenders, the Administrative Agent shall promptly pay to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing DateLenders), 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 Borrower hereunder or under any other Loan Document;
(m) The Total Leverage Ratio of the Borrower calculated for the Applicable Period ended December 31, 2014 and after giving pro forma effect to the Transactions and any Borrowings under this Agreement made on the Closing Date as if made on the last day of such period and still outstanding on the last day of such period shall not exceed 3.00:1.00;
(n) All existing Liens on the TEP Common Units to be acquired by the Borrower from T-Dev Operations shall be released, and the Administrative Agent shall have received evidence of such release; and
(o) The Administrative Agent shall have received a counterpart of Form FR U-1 signed on behalf of the Borrower and shall be satisfied that the amount of the Commitments do not exceed the “maximum loan value” (within the meaning of Regulation U) of the Collateral.
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, PDF or other electronic 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, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the -91- Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the 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.
(c) 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.
(d) 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
(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, 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 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 (including without limitation, tax identification numbers and addresses).
(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, tax and judgment 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.
(f) The Existing Credit Agreement Amendment Acquisition shall have become effective and been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in form accordance with the Acquisition Agreement and substance all other related documentation (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably satisfactory to determined by the Administrative Agent) without the prior consent of the Administrative Agent).
(g) The Pari Passu Intercreditor Agreement Equity Financing shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) been consummated. The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) Equity Financing shall be as set forth in the Offering Memorandum Equity Commitment Letters or otherwise reasonably satisfactory in all respects to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(p) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) 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. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Nalco Energy Services Equatorial Guinea 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, PDF or other electronic facsimile 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 and the Closing DateLenders, a favorable written opinion opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ O’Melveny & ▇▇▇▇▇▇▇▇ LLP, special transaction counsel for Holdings and the U.S. BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), (iii) Callenders & Co., special Bahamas maritime counsel for the Loan Parties, (iv) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda maritime counsel for the Loan Parties, and (v) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special maritime counsel for the Loan Parties (which opinion shall be limited to covering the preferred status of the Vessel Mortgages as foreign mortgages pursuant to Title ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Section 31301(6)(B)), in each case (Ax) dated the Closing Date, (By) addressed to the Administrative Agent, the Collateral Agent, each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent Date and the Lenders and (Cz) in form and substance reasonably satisfactory to the 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.
(c) 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.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii), (iv) and (ivv) 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, thereto of each Loan Party, (Ax) 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 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 (By) if not available from an official in the case of a partnership of or limited liability companysuch jurisdiction, (A) certified by the Secretary or Assistant Secretary of each such Loan PartyParty or other person duly authorized by the constituent documents of such Loan Party or (B) otherwise in form and substance reasonably satisfactory to the Administrative Agent; provided that with respect to Radisson France the Administrative Agent also shall have received
(i) an original k-bis extract (extrait k-bis) dated not more than one month old before the Closing Date, (ii) if necessary, a copy of any power of attorney, (iii) a non-bankruptcy certificate (recherche négative de procédure collective) dated not more than one month old before the Closing Date and (iv) an état des inscriptions et privilèges dated not more than one month old before the Closing Date;
(ii) with respect to Radisson France, an executed copy of the TEG Letter;
(iii) a certificate of the Secretary or Assistant Secretary or similar officer 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 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 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 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
(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;
(iiiiv) 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 (iiiii) above;
(v) with respect to Radisson France the capital of which is intended to be pledged pursuant to a Subsidiary Borrower Pledge Agreement, a certified copy of the minutes of the general meeting of shareholders approving the Secured Parties as at the Closing Date as shareholders of Radisson France in the event of the enforcement of the Subsidiary Borrower Pledge Agreement; and
(ivvi) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied to the reasonable satisfaction of the Administrative Agent, 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, tax and judgment Code (or equivalent) Lien filings made with respect to each Borrower in Washington, D.C., the Loan Parties jurisdiction in which such Borrower is formed and existing and any other jurisdiction in which the jurisdictions contemplated by the Perfection Certificates and Collateral Agent determines it would be advisable to conduct such a search, 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 releasedreleased and terminated; provided 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 similar Lien filing in any other relevant jurisdiction, the registration of a Vessel Mortgage in the appropriate ship registry, the recordation, registration or filing of other Security Documents (or notice thereof) with the appropriate Governmental Authority or the delivery of stock certificates or other instruments representing Equity Interests and the security agreement giving rise to the security interest therein) is not able to be provided on the Closing Date 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(a).
(e) The Acquisition shall have been consummated in accordance with the Acquisition Documents, without giving effect to any waiver or other modification thereof that is materially adverse to the interests of the Lenders not approved in writing by the Administrative Agent, and the Administrative Agent shall have received a copy of each consent, authorization, acknowledgement, approval or similar item from or issued by any Governmental Authority required under the Acquisition Documents.
(f) The Existing Credit Agreement Amendment Second Lien Loan Documents shall have (or substantially simultaneously with the closing under this Agreement shall) become effective and shall be in the form and substance reasonably satisfactory to approved by the Administrative Agent, and the Borrowers shall have received gross cash proceeds of not less than $175,000,000 from the incurrence of the Second Lien Obligations.
(g) The Pari Passu Intercreditor Agreement Since December 31, 2006, no Material Adverse Effect shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indentureoccurred.
(i) The terms and conditions All amounts due or outstanding in respect of the New Senior Notes Existing Credit Agreements and all other indebtedness of any Loan Party or Subsidiary (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remediesother than Indebtedness set forth on Schedule 6.01) shall be as set forth 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, released and terminated, and (ii) the Voyager Bareboat Charter Arrangement shall have been (or substantially simultaneously with the closing under this Agreement shall be) terminated, and Supplystill shall have acquired all right, title and interest in the Offering Memorandum or otherwise SEVEN SEAS VOYAGER and the SEVEN SEAS VOYAGER shall have been duly registered under Bahamian law in the name of Supplystill as owner thereof, and, in the case of each of clauses (i) and (ii), the Administrative Agent shall have received reasonably satisfactory to the Administrative Agentevidence thereof.
(ji) The Lenders shall have received the financial statements and interim financial reports referred to in Section 3.05.
(kj) The Lenders shall have received a pro forma consolidated balance sheet (calculated at On the most recently available balance sheet date) of the U.S. BorrowerClosing Date, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, HoldingsCCH, the U.S. Borrower Subsidiary Borrowers and their the Material Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, Second Lien Obligations and (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01.
(mk) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I C and signed by a Financial Officer of each of Holdings and the U.S. Borrower CCH confirming the solvency of Holdings, the U.S. (i) each Borrower individually and (ii) CCH and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted basis, in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiarieseach case, after giving effect to the Transactions, taken as a whole, since December 31, 2008Transactions on the Closing Date.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(p) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(ql) The Agents shall have received all fees payable thereto or to any Arranger or 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. and foreign local counselChance US LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(m) The Administrative Agent and/or Collateral Agent (as appropriate) shall have received insurance certificates, copies of cover notes and certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the requirements of Section 5.02 (including any such items also covered in clause (iv) of paragraph (r) of this Section 4.02).
(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 the USA PATRIOT Act.
(o) The Administrative Agent shall have received satisfactory evidence that the Process Agent shall have accepted its appointment by each Loan Party as provided in Section 10.15(c).
(p) The Administrative Agent shall have received a copy of the CCH-Radisson France Instrument, together with a copy of a report from KPMG, LLP setting forth a determination of the fair market value of the CCH-Radisson France Instrument using any commonly accepted valuation methodology, certified by a Responsible Officer of CCH as true and complete and in full force and effect on the Closing Date.
(q) The Administrative Agent shall have received a copy of the Shared Services Agreement certified by a Responsible Officer of CCH as true and complete and in full force and effect on the Closing Date.
(r) The Collateral Agent shall have received:
(i) evidence that each Vessel Mortgage has been duly executed and delivered by the relevant Borrower and duly registered in accordance with the laws of Bahamas, with respect to the SEVEN SEAS MARINER and the SEVEN SEAS VOYAGER, or Bermuda, with respect to the SEVEN SEAS NAVIGATOR, 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) (x) in respect of each of the SEVEN SEAS MARINER and the SEVEN SEAS VOYAGER, a Transcript of Register issued by the Bahamas Maritime Authority and (y) in respect of the SEVEN SEAS NAVIGATOR, a Transcript of Register issued by the Department of Maritime Administration for Bermuda, in each case, stating that the applicable Mortgaged Vessel is owned by the applicable Borrower and that there are of record no liens or other encumbrances on such Mortgaged Vessel except the applicable Vessel Mortgage in favor of the Collateral Agent and the applicable Second Lien vessel mortgage in favor of the Second Lien Collateral Agent;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the relevant Vessel Mortgage, to the effect that the relevant 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 relevant 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 a favorable opinion from an Approved Insurance Evaluator on such matters relating to the insurance for the relevant Mortgaged Vessel as the Administrative Agent may require and the letters of undertaking required by the relevant Security Documents;
Appears in 1 contract
Sources: Credit Agreement (Mariner, 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, PDF 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, the Lenders and the Issuing Banks, written opinions of each Issuing Bank on the Closing Date, a favorable written opinion of (i) Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for Overnite and the other Loan Parties, substantially to the effect set forth in Exhibit F-1, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel of Overnite and the Borrower, substantially to the effect set forth in Exhibit F-2, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. BorrowerEsq., in form and substance reasonably satisfactory General Counsel of Motor Cargo, substantially to the Administrative Agent and effect set forth in Exhibit F-3, each (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (Ai) dated the Closing Date, (Bii) addressed to each the Issuing Bank on the Closing DateBanks, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, and (iii) covering such other matters relating to the Loan Documents and the Transactions as the Syndication Agent and the Administrative Agent shall reasonably request, and each of Holdings Overnite and the U.S. Borrower hereby instructs its request such counsel to deliver such opinions.
(cb) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder Agreement and the other Loan Documents shall be reasonably satisfactory to the Administrative AgentLenders, to the Lenders Issuing Banks, to the Syndication Agent and to each Issuing Bank on the Closing DateAdministrative Agent and, to the extent requested, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including the USA Patriot Act.
(dc) 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 officialequivalent 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 jurisdiction) of each such Loan Party as of a recent date reasonably close to the Closing 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;
equivalent authority); (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,
effect, (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement incorporation 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 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 or its counsel may reasonably request (including without limitation, tax identification numbers and addresses)request.
(ed) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates a certificate, dated the Closing Date and signed by a Responsible Financial Officer of Overnite, confirming compliance with the U.S. Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as precedent set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
paragraphs (jb) The Lenders shall have received the financial statements referred to in Section 3.05.
and (k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet datec) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAPSection 4.01.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(p) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) 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. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Overnite Corp)
First Credit Event. On OnThe conditions to the First Credit Event were satisfied 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, PDF or other electronic 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) (a) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special New York counsel, (b) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., Delaware counsel for the Loan Parties and (c) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, in-house counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent (ii) Stikeman Elliott LLP, Canadian counsel for the Loan Parties with respect to the laws of Ontario, British Columbia and Alberta, in form and substance reasonably satisfactory to the Administrative Agent, (iii) Stikeman Elliott LLP, Canadian counsel for the Loan Parties with respect to the laws of Quebec, in form and substance reasonably satisfactory to the Administrative Agent, (iv) Stikeman Elliot LLP, Canadian counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, (v) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Law Corporation, Manitoba counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent, (vi) Field LLP, Nunavut counsel for the Loan Parties, in form reasonably satisfactory to the Administrative Agent and (vii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Nova Scotia counsel for Holdings and the U.S. BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent 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) in form and substance reasonably satisfactory to the 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.
(c) 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.
(d) The Administrative Agent shall have received in the case of each person that is a Loan Party on the Closing 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, (Ax) 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 (By) 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 Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement agreement, articles of association 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 BorrowerBorrowers, 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, 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, which shall be a date prior to the date of the resolutions described in clause (B) 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, Party and
(E) as to the absence of any pending proceeding for the dissolution dissolution, winding-up 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 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
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request (including including, without limitation, tax identification numbers and addresses).
(e) The Collateral and Guarantee Requirement Requirements required to be satisfied on or prior to the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed or waived 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, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(lf) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower Holdings and their its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (viii) other Indebtedness permitted pursuant to Section 6.01.
(mg) The Refinancing shall be consummated concurrently with the closing under this Agreement. A payoff letter in respect of the Existing Credit Agreement and release of the Liens with respect thereto, each in form and substance reasonably satisfactory to the Administrative Agent, shall have been delivered.
(h) The Lenders shall have received a solvency certificate substantially the financial statements referred to in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the TransactionsSection 3.05(a).
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(oi) No provision of any applicable law or regulation and no judgment, injunction, judgment or order or decree shall prohibit the consummation of the TransactionsTransactions except for laws, regulations, judgments or orders which do not and all would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 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 taken, made or obtained, except for any such actions or filings the failure of which to take, make or obtain would not and would not be material reasonably expected to have, individually or in the U.S. Borrower and its Subsidiariesaggregate, taken as a wholeMaterial Adverse Effect or are not required pursuant to Agreed Security Principles.
(pj) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) The Agents shall have received all fees due and 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 llp and U.S. and foreign local counselOsler, ▇▇▇▇▇▇ & Harcourt LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(k) The Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information that may be required by the Lenders in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act including the information described in Section 9.19; provided such information shall have been requested at least 10 Business Days in advance of the Closing Date.
(l) [Reserved].
(m) The Administrative Agent shall have received a solvency certificate in the form of Exhibit G, dated the Closing Date and signed by the chief financial officer of Holdings.
(n) The Administrative Agent shall have received an officer’s certificate in the Form of Exhibit L, dated the Closing Date and signed by an officer of Holdings certifying that all the conditions in Sections 4.01(b), (c) and (d) have been met.
(o) The Collateral Agent shall have received the results, as of a recent date, of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, in each case to the extent reasonably requested by the Collateral Agent prior to 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, PDF or other electronic 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 Syndication Agent, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel for Holdings and the U.S. BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit N attached hereto, (ii) local U.S. and/or foreign ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b)and substantially in the form of Exhibit O-1 attached hereto, (iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Loan Parties, in each case (A) dated form and substance reasonably satisfactory to the Closing DateAdministrative Agent and substantially in the form of Exhibit O-2 attached hereto, (Biv) addressed ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Manitoba counsel for the Loan Parties in form and substance reasonably satisfactory to each Issuing Bank on the Closing Date, the Administrative Agent, (v) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and Malakoe, Nunavut counsel for the Collateral Loan Parties, in form reasonably satisfactory to the Administrative Agent and (vi) Stewart, McKelvey, Stirling & Scales, Nova Scotia counsel for the Lenders and (C) Loan Parties, in form and substance reasonably satisfactory to the 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.
(c) 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.
(d) The Administrative Agent shall have received in the case of each person that is a Loan Party on the Closing Date each of the items referred to in clauses (i), (ii), (iii), (iv) and (ivv) 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, (Ax) 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 (By) 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 Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement agreement, articles of association 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 BorrowerBorrowers, 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, 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, which shall be a date prior to the date of the resolutions described in clause (B) 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, Party and
(E) as to the absence of any pending proceeding for the dissolution dissolution, winding-up 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 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
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request (including including, without limitation, tax identification numbers and addresses).
(e) The Collateral and Guarantee Requirement Requirements shall have been satisfied and or waived by 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, tax and judgment (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 releasedAgent.
(f) The Existing Credit Acquisition Agreement Amendment (together with all exhibits and schedules thereto), shall not have been amended or modified in a manner materially adverse to the Lenders without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld). There shall have become effective and shall be in form and substance reasonably satisfactory been delivered to the Administrative Agent true and correct copies certified as such by the Secretary or Assistant Secretary of Holdings of the Acquisition Documents. The Acquisition shall have been consummated (or shall be consummated concurrently with the closing under this Agreement) in accordance in all material respects with the terms and conditions of the Acquisition Agreement (without amendment, modification or waiver thereof which is materially adverse to the Lenders without the prior written consent of the Administrative Agent, which consent will not be unreasonably withheld).
(g) The Pari Passu Intercreditor Agreement Equity Financing shall have become effective and shall be in form and substance satisfactory to the Administrative Agentbeen consummated.
(h) The U.S. Initial Canadian Borrower and Canadian Borrower shall have received net gross cash proceeds (calculated before underwriting fees) of (i) not less than $692,825,000 from the issuance of Senior Bridge Loans and (ii) not less than $500 million in aggregate principal amount of New 217,175,000 from the Senior Notes pursuant Subordinated Bridge Loans. There shall have been delivered to the New Administrative Agent true and correct copies certified as such by the Secretary or Assistant Secretary of Holdings of the Senior Note IndentureLoan Documents and Senior Subordinated Loan Documents.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower Holdings and their its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior NotesBridge Loans, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement Senior Subordinated Bridge Loans and (viiv) other Indebtedness permitted pursuant to Section 6.01.
(j) The Skynet Contribution shall have been consummated (or shall be consummated on the Closing Date) in accordance in all material respects with the terms and conditions of the Skynet Contribution Documents (without amendment, modification or waiver thereof which is materially adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior written consent of the Administrative Agent) and all applicable laws.
(k) The Refinancing shall have been consummated (or shall be consummated concurrently with the closing under this Agreement or, in the case of the redemption of the preferred stock of Skynet, funds sufficient to pay the redemption price in full shall have been irrevocably deposited in trust for such purpose with Mellon Investor Services LLC, or, in the case of the letters of credit issued under the Bank of Montreal credit agreement arrangements to cash collateralize such letters of credit shall have been made). The lien securing the Skynet Bonds shall have been released and the Canadian Borrower shall have delivered evidence thereof to the Administrative Agent (and the Administrative Agent shall have acknowledged receipt thereof). The Company shall have given irrevocable notice of redemption of the Telesat Notes (or made arrangements with the trustee in respect thereof to provide such notice) and shall have deposited funds in a segregated account with The Bank of Nova Scotia sufficient to pay the redemption price. Payoff letters in respect of the existing credit facility between the Company and Bank of Montreal and loan agreement between Skynet and Valley National Bank, each in form and substance reasonably satisfactory to the Administrative Agent, shall have been delivered.
(l) The Lenders shall have received the financial statements referred to in Sections 3.05(a) and (b).
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the TransactionsProjections.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) No provision of any applicable law or regulation and no judgment, injunction, judgment or order or decree shall prohibit the consummation of the TransactionsTransactions except for laws, regulations, judgments or orders which do not and all would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 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 taken, made or obtained, except for any such actions or filings the failure of which to take, make or obtain would not and would not be material reasonably expected to have, individually or in the U.S. Borrower and its Subsidiariesaggregate, taken as a wholeMaterial Adverse Effect or are not required pursuant to Agreed Security Principles. For purposes of this clause (n), the term Transactions shall not include the Acquisition.
(po) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) The Agents shall have received all fees payable thereto to it, the Arrangers or to any other 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 llp and U.S. and foreign local counselOsler, ▇▇▇▇▇▇ & Harcourt LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(p) The Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information that may be required by the Lenders in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) including the information described in Section 9.19, provided such information shall have been requested at least 5 Business Days in advance of the Closing Date.
(q) There shall not have occurred, following September 30, 2006 and prior to the Closing Date, a Material Adverse Effect (as such term is defined in the Acquisition Agreement) with respect to Company and its Subsidiaries as determined by the Lenders who hold a majority of the commitments with respect to the Facilities.
(r) The Administrative Agent shall have received a solvency certificate in the form of Exhibit G, dated the Closing Date and signed by the chief financial officer of Holdings.
(s) The Administrative Agent shall have received an officer’s certificate in the Form of Exhibit L, dated the Closing Date and signed by an officer of Holdings certifying that all the conditions in Sections 4.01(b), (c) and (d) have been met.
Appears in 1 contract
Sources: Credit Agreement (Loral Space & Communications 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, PDF or other electronic 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) (a) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special New York counsel, (b) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., Delaware counsel for the Loan Parties and (c) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, in-house counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent (ii) Stikeman Elliott LLP, Canadian counsel for the Loan Parties with respect to the laws of Ontario, British Columbia and Alberta, in form and substance reasonably satisfactory to the Administrative Agent, (iii) Stikeman Elliott LLP, Canadian counsel for the Loan Parties with respect to the laws of Quebec, in form and substance reasonably satisfactory to the Administrative Agent, (iv) Stikeman Elliot LLP, Canadian counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, (v) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Law Corporation, Manitoba counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent, (vi) Field LLP, Nunavut counsel for the Loan Parties, in form reasonably satisfactory to the Administrative Agent and (vii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Nova Scotia counsel for Holdings and the U.S. BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent 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) in form and substance reasonably satisfactory to the 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.
(c) 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.
(d) 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
(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 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 (including without limitation, tax identification numbers and addresses).
(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, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(p) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) 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. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Telesat Canada)
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, PDF 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, the Lenders and each Issuing Bank on the Closing DateFacing Agent, a favorable customary written opinion of (i) Winston & Stra▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special .S. counsel for Holdings and the U.S. BorrowerBorrowers, in form and substance reasonably satisfactory substantially to the Administrative Agent and effect set forth in Exhibit G-1, (ii) local U.S. and/or foreign Stikeman Elliott, Ontario counsel reasonably satisfactory for the Borrowers, substantially to the Administrative Agent as specified effect set forth in Exhibit G-2-A, (iii) Stikeman Elliott, Quebec counsel for the Borrowers, substantially to the effect set forth in Exhibit G-2-B, (iv) Stikeman Elliott, Canadian tax counsel for the Borrowers, substantially to the effect set forth in Exhibit G-2-C and (v) each local counsel set forth on Schedule 4.02(b)5.02
(a) substantially to the effect set forth in Exhibit G-3, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Facing Agent, the Collateral Agent Agents and the Lenders Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Agents shall reasonably request and with such other changes as are reasonably acceptable to the Agents, and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the U.S. Borrower Borrowers hereby instructs its instruct their counsel to deliver such opinions.
(cb) All legal matters incident to this Agreement, the borrowings Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative AgentAgents, to the Lenders and to each Issuing Bank on the Closing DateFacing Agent.
(dc) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (iA), (ii), (iiiB) and (ivC) below:
below with respect to each Loan Party: (iA) 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) relevant Governmental Authority 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 Governmental Authority; (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 (Aw) 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 Date, (B) below,
(Bx) 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 hereunderTransactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
effect, (Cy) that the certificate or articles of incorporation, partnership agreement or limited liability agreement incorporation 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 (iA) above,
, and (Dz) 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;
(iiiC) 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 (iiB) above; and
(iv) and such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agents may reasonably request (including without limitation, tax identification numbers and addresses)request.
(ed) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates a certificate of Stone, dated the Closing Date and signed by a Responsible Financial Officer of and on behalf of Stone, confirming compliance with the U.S. Borrower, together with all attachments contemplated thereby, including the results conditions precedent set forth in paragraphs (b) and (c) of a search of the Uniform Commercial Code, tax and judgment (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 released5.01.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(pe) The Administrative Agent shall have received any all Fees and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) 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. and foreign local counsel) required to be reimbursed or paid by the Loan Parties either Borrower hereunder or under any other Loan Document.
(f) Each of the Guarantee Agreements shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect.
(i) The Pledge Agreements and the Bond Pledge Agreements shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, and (i) all the outstanding capital stock of SLP US and its Domestic Subsidiaries owned, directly or indirectly, by Stone and all the outstanding capital stock of each Subsidiary of Canco shall have been duly and validly pledged thereunder to the Collateral Agent and certificates representing such shares, accompanied in the case of certificated shares by stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent; and (ii) the Security Agreements and the Hypothecs shall have been duly executed by the Loan Parties party thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including each Uniform Commercial Code financing statement) reasonably requested by the Agents to be filed, registered or recorded in order to create in favor of the Collateral Agent a valid, legal and perfected or published first-priority or first ranking security interest in and lien on the Collateral described in each such agreement (subject to any Lien expressly permitted by Section 7.02) shall have been delivered to the Collateral Agent or the Trustee, as the case may be.
(h) The Collateral Agent shall have received (i) the results of a search of the Uniform Commercial Code filings made with respect to the Loan Parties in the states in which the chief executive office of each such person is located and the other jurisdictions in which Uniform Commercial Code filings are to be made pursuant to the preceding paragraph, together with copies of the financing statements disclosed by such search and (ii) the results of equivalent searches made in each other jurisdiction reasonably requested by the Agents, in each case accompanied by evidence reasonably satisfactory to the Agents that the Liens indicated in any such financing statement (or similar document) or otherwise disclosed in such searches would be permitted under Section 7.02 or have been released.
(i) (i) Each of the Mortgages, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those expressly permitted under Section 7.02, (iii) a lender's title insurance policy or, in the case of Mortgaged Property located in Canada, except as otherwise agreed to by the Agents, a written legal opinion, together with such surveys reasonably requested by the Agents, paid for by the Borrowers, in form and substance reasonably acceptable to the Agents, insuring or opining, as the case may be, that such Mortgage constitutes a first lien on such Mortgaged Property (subject to any Lien expressly permitted by Section 7.02 or otherwise agreed to by the Agents) shall have been received by the Agents and (iv) the Collateral Agent shall have received such other documents as reasonably requested in writing by the Agents.
(j) 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 6.02 and the applicable provisions of the Security Documents, each of which policies shall be endorsed or otherwise amended to include a lender's loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(k) Except with respect to the Final Transaction Steps, the Acquisition shall have been consummated substantially simultaneously with the initial Credit Event hereunder in accordance (i) in all material respects with applicable law and (ii) in all material respects with the terms of the Reorganization Agreement; and the conditions to Stone's obligations set forth in the Pre-Merger Agreement shall have been satisfied without giving effect to any waiver or amendment in any manner materially adverse to the Lenders that was not approved by the Agents.
(l) All principal, premium (if any), interest, fees and other amounts due and owing under the Existing SLP Indebtedness shall have been paid in full, the commitments thereunder terminated and all guarantees thereof and security therefor released and discharged, and the Agents shall have received reasonably satisfactory evidence thereof. After giving effect to the Acquisition and the other Transactions, SLP US, Canco and their respective subsidiaries shall have outstanding no Indebtedness other than Loans hereunder and Indebtedness set forth on Schedule 7.01.
(m) The Administrative Agent shall have received the financial statements referred to in Section 4.05, which financial statements shall not be materially inconsistent with the information, projections and financial models delivered prior to the date hereof.
(n) All requisite material approvals and consents to the Acquisition and the other Transactions of or from Governmental Authorities and all material third parties shall have been received to the extent required and all applicable appeal periods shall have expired and there shall be no governmental or judicial action, actual or threatened, that has or could have a reasonable likelihood of restraining, preventing or imposing materially burdensome conditions on the Acquisition (including the Final Transaction Steps) and the other Transactions, or the consummation of the other transactions contemplated hereby or that would require any divestiture of a material portion of the assets of Canco.
Appears in 1 contract
First Credit Event. On The initial Credit Event hereunder (and the Closing Dateobligations of the Lenders and/or the Issuing Bank, as applicable, in respect thereof) shall be subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and each of the other Loan Documents signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy, PDF telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.Agreement and each of the Loan Documents;
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders Issuing Banks and each Issuing Bank on the Closing DateLenders, a the favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Street LLP, special counsel for Holdings and the U.S. Borrower, Borrower in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b)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 Agent, the Issuing Banks and the Lenders and (C) in form and substance reasonably satisfactory to the 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.;
(c) 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.
(d) The Administrative Agent shall have received in with respect to the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) Borrower and (iv) below:
TEP GP (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, Organizational Documents certified to be true and complete as of a recent date by the Secretary of State (or other similar official) appropriate Governmental Authority of the jurisdiction State of its organizationDelaware and certified by a secretary or assistant secretary of the Borrower or TEP GP, as applicable, to be true 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 complete 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;
Closing Date; (ii) a certificate of the Secretary secretary or Assistant Secretary or similar officer assistant secretary of each Loan Party of the Borrower and TEP GP 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 of the Borrower or other equivalent governing documents) of such Loan Party TEP GP, as applicable, 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 other governing body of the Borrower (and, if applicable, any shareholder or equivalent governing body) parent company of such Loan Party (or its managing general partner or managing memberthe Borrower) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of a Borrower, and 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 or limited liability agreement organization of such Loan Party each of the Borrower and TEP GP have not been amended since the date of the last amendment thereto disclosed shown on the certificate furnished pursuant to clause (i) above,
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;
Borrower; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary secretary or Assistant Secretary or similar officer assistant secretary executing the certificate pursuant to clause (ii) above; and;
(ivd) such other documents as The Administrative Agent and the Administrative AgentCollateral Agent shall have received, the Lenders and any Issuing Bank on or before the Closing Date may all documents and instruments, including Uniform Commercial Code financing statements required by Law or reasonably request requested by the Collateral Agent (including without limitationto the extent required by the Security Agreement) to be filed, tax identification numbers registered, published or recorded to create or perfect the Liens intended to be created under the Loan Documents and addresses).all such documents and instruments shall have been so filed, registered, published or recorded or other arrangements reasonably satisfactory to the Collateral Agent for such filing, registration, publication or recordation shall have been made;
(e) The Collateral and Guarantee Requirement Administrative Agent shall have received certified copies of the Related Documents, duly executed by the parties thereto;
(f) Prior to or substantially simultaneously with the making of the initial Revolving Loans, the Transactions shall have been satisfied consummated;
(g) The Administrative Agent shall have received (i) the unqualified audited consolidated financial statements of TEP for the fiscal year ended December 31, 2014, (ii) an unaudited pro forma condensed consolidated balance sheet of TEGP as of December 31, 2014 and (iii) an audited consolidated balance sheet of TEGP as of February 10, 2015; provided that the financial statements shall have been prepared in all material respects in accordance with GAAP;
(h) The Administrative Agent shall have received financial projections of TEGP through the third year following the Closing Date which will be prepared on a basis consistent with the financial projections of TEGP delivered to the Arranger prior to the Closing Date;
(i) The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit K;
(j) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clause (b) and (c) of Section 4.01 and clauses (f) and (m) of this Section 4.02;
(k) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, at least five (5) Business Days prior to the Closing Date, that has been reasonably requested by any Lender at least ten (10) days in advance of the Closing Date;
(l) The Arranger 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, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans Fees and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement amounts due and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(p) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and(which, in the case of Fees for the account of the Lenders, the Administrative Agent shall promptly pay to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing DateLenders), 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 Borrower hereunder or under any other Loan Document;
(m) The Total Leverage Ratio of the Borrower calculated for the Applicable Period ended December 31, 2014 and after giving pro forma effect to the Transactions and any Borrowings under this Agreement made on the Closing Date as if made on the last day of such period and still outstanding on the last day of such period shall not exceed 3.00:1.00;
(n) All existing Liens on the TEP Common Units to be acquired by the Borrower from T-Dev Operations shall be released, and the Administrative Agent shall have received evidence of such release; and
(o) The Administrative Agent shall have received a counterpart of Form FR U-1 signed on behalf of the Borrower and shall be satisfied that the amount of the Commitments do not exceed the “maximum loan value” (within the meaning of Regulation U) of the Collateral.
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, PDF 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, the Lenders and each the Issuing Bank on the Closing DateBank, a favorable written opinion of (i) Port▇▇ & ▇edg▇▇, ▇.L.P., counsel for Allied and the Borrower, substantially to the effect set forth in Exhibit N-1, (ii) Thom▇▇ ▇. ▇▇▇▇▇, ▇▇q., internal counsel of Allied and the Borrower, substantially to the effect set forth in Exhibit N-2, (iii) Davi▇▇, ▇▇▇▇ & ▇eck, special Canadian counsel for Allied and the Borrower and each Canadian Local Counsel set forth on Schedule 4.02(a), substantially to the effect set forth in Exhibit N-3 and (iv) Ivan ▇. ▇▇▇▇▇▇▇ , ▇▇q., internal counsel for Laid▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the U.S. Borrower, in form and substance reasonably satisfactory bstantially to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b)effect set forth in Exhibit N-4, in each case (A) dated the Closing Date, (B) addressed to each the Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Syndication Agent, the Documentation Agent and the Lenders Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent, the Syndication Agent or the Documentation Agent shall reasonably request, and each of Holdings Allied and the U.S. Borrower hereby instructs its request such counsel to deliver such opinions.
(cb) All legal matters incident to this Agreement, the borrowings Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative AgentLenders, to the Lenders Issuing Bank and to each Issuing Bank on Cravath, Swaine & Moor▇, ▇▇unsel for the Closing DateSyndication Agent, the Administrative Agent and the Documentation Agent.
(dc) 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 of Allied, the Borrower, Allied Finance, Allied Canada and each other material Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) appropriate government officials of the jurisdiction of its organizationincorporation, and a certificate as to the status, compliance or good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such of Allied, the Borrower, Allied Finance, Allied Canada and each other material Loan Party as of a recent date date, 74 68 from such Secretary of State (State, or other similar official) or (B) in the case of a partnership of or limited liability companyCanadian Subsidiaries, certified by the Secretary or Assistant Secretary of each such Loan Party;
an appropriate government official; (ii) a certificate of the Secretary or Assistant Secretary or similar officer of each of Allied, the Borrower, Allied Finance, Allied Canada and each other material Loan Party dated the Closing Date and certifying
certifying (A) that attached thereto is a true and complete copy of the by-laws (of Allied, the Borrower, Allied Finance, Allied Canada or partnership agreementeach such other material Loan Party, limited liability company agreement or other equivalent governing documents) of such Loan Party as the case may be, 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 bodyif applicable, the shareholder or shareholders) of such the Loan Party (or its managing general partner or managing member) Parties 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,
effect, (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement incorporation 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 or director 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 or similar officer executing the certificate pursuant to clause (ii) above; and
and (iv) such other documents as the Lenders, the Issuing Bank or Cravath, Swaine & Moor▇, ▇▇unsel for the Administrative Agent, the Lenders Syndication Agent and any Issuing Bank on the Closing Date Documentation Agent may reasonably request (including without limitation, tax identification numbers and addresses)request.
(ed) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates a 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, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to Borrower, confirming compliance with the effect that such statements accurately present the pro forma financial position conditions precedent set forth in paragraphs (b) and (c) of the U.S. Borrower and its Subsidiaries in accordance with GAAPSection 4.01.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(pe) The Administrative Agent, the Syndication Agent and the Documentation Agent shall have received any all Fees and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) 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. and foreign local counsel) required to be reimbursed or paid by the Loan Parties Borrower hereunder or under any other Loan DocumentDocument (it being understood that, to the extent not invoiced, such expense shall be paid after the Closing Date promptly upon the presentation of invoices therefor).
(f) Each of the Pledge Agreement and the Allied Finance Pledge Agreement shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, and (i) all the outstanding capital stock of the Borrower and the Subsidiaries to the extent set forth in the Pledge Agreement and (ii) the Allied Canada Debentures shall have been, in each case, duly and validly pledged under the Pledge Agreement or the Allied Finance Pledge Agreement, as applicable, to the Collateral Agent for the ratable benefit of the Secured Parties and certificates representing such shares and the Allied Canada Debentures, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent. Each Canadian Securities Pledge Agreement shall have been duly executed by the parties thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including appropriate financing 75 69 statements) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid and perfected first-priority security interest and hypothec in and lien on the Securities (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent.
(g) The Security Agreement shall have been duly executed by the parties thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent; and each of the Canadian Collateral Covenant Agreement and the Allied Finance Collateral Covenant Agreement shall have been duly executed by the parties thereto, shall be delivered to the Collateral Agent and shall be in full force and effect. Each Canadian Debenture and each Canadian Debenture Pledge Agreement shall have been duly executed by the parties thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including appropriate financing statements) (or evidence that such document has been filed, registered or recorded, as applicable) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid and perfected first-priority security interest in and lien on the property forming part of the Charged Premises (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent. Each Canadian General Assignment of Book Debts shall have been duly executed by the parties thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including appropriate financing statements) (or evidence that such document has been filed, registered or recorded, as applicable) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid and perfected first-priority security interest in and Lien on Debts (as defined in the Canadian General Assignment of Book Debts) (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent. The Collateral Agent shall have received the results of a search of the personal property security legislation (or equivalent filings under equivalent legislation) filings made with respect to the applicable Loan Parties in the province in which the registered office of such person is located or in which any offices of such persons in which records have been kept relating to the Accounts (as defined in the Security Agreement) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been released. Each Hypothec shall have been duly executed by the parties thereto, shall have been delivered to the Collateral Agent and shall be in full force and effect and each document required by law or reasonably requested by the 76 70 Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid and perfected first- priority hypothec in and lien on the property forming part of the Charged Premises (subject to any Lien expressly permitted by Section 6.02 and excluding filings, registrations or recordations in any land title, land registry or similar office) described in such Hypothec shall have been delivered to the Collateral Agent.
(h) The Guarantee Agreements shall have been duly executed by the parties thereto, shall have been delivered to the Collateral Agent and shall be in full force and effect.
(i) The Indemnity, Subrogation and Contribution Agreement shall have been duly executed by the parties thereto, shall have been delivered to the Collateral Agent and shall be in full force and effect.
(j) The Pledge Intercreditor Agreement shall have been duly executed by the parties thereto, shall been delivered to the Collateral Agent and shall be in full force and effect.
(k) The Collateral Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent filings) filings made with respect to the Loan Parties in the states (or other United States jurisdictions) in which the chief executive office of each such person is located, any offices of such persons in which records have been kept relating to Accounts and the other United States jurisdictions in which Uniform Commercial Code filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been released.
(l) The Collateral Agent shall have received a Perfection Schedule with respect to the Loan Parties located in the United States and a Canadian Perfection Certificate with respect to the Loan Parties located in Canada, in each case dated the Closing Date.
(m) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which 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.
(n) The Administrative Agent, the Syndication Agent and the Documentation Agent shall have received an environmental assessment report in form, scope and substance reasonably satisfactory to the Lenders, from EMCON Corporation, as to environmental matters relating to Allied, the Borrower and the Subsidiaries, and the Lenders shall be reasonably satisfied with the nature and cost of any environmental 77 71 hazards, liabilities or Remedial Action disclosed therein and with the Borrower's plans with respect thereto.
(o) Substantially contemporaneously with the first Credit Event, Allied shall have repaid in full the principal of all loans outstanding, interest thereon and other amounts due and payable under the Existing Credit Agreement and under each other agreement related thereto, and the Administrative Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto (other than the Existing Letters of Credit and all applications and reimbursement agreements related thereto), (ii) the cancellation of all commitments thereunder and (iii) the termination of all related agreements (other than the Existing Letters of Credit and all applications and reimbursement agreements related thereto) and guarantees and security interests granted by any Loan Party or any Subsidiary or any other person in connection therewith and the discharge of all obligations or interests thereunder.
(p) After giving effect to the Transactions, Allied, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (i) the Loans hereunder, (ii) the Indebtedness shown on Schedule 6.01 or otherwise permitted pursuant to Section 6.01, (iii) the Senior Subordinated Notes, (iv) the Laid▇▇▇ Debentures, (v) the Allied Canada Debentures and (vi) the preferred stock (the "Preferred Stock") of the Borrower set forth on Schedule 4.02(p).
(q) There shall have been no material adverse change in the business, assets, operations, properties, financial condition, contingent liabilities, prospects or material agreements of Allied, the Borrower and the Subsidiaries (other than the Laid▇▇▇ ▇▇▇sidiaries), taken as a whole, since December 31, 1995, or of the Laid▇▇▇ Subsidiaries, taken as a whole, since August 31, 1996.
(r) The Acquisition shall have been consummated or shall be consummated simultaneously with the first Credit Event in accordance with applicable law, in accordance with the Stock Purchase Agreement (without giving effect to any waiver of any material condition set forth in the Stock Purchase Agreement not approved by the Lenders) and on terms reasonably satisfactory to the Lenders and the consummation of the Transactions shall not create a prepayment event under any provision of any indenture or other agreement or instrument evidencing Indebtedness, other than the Existing Credit Agreement. The aggregate level of fees and expenses to be paid in connection with the Transactions shall not exceed $70,000,000.
(s) The Indenture Trustee shall have delivered to the Borrower, the net proceeds relating to the Senior Subordinated Notes in accordance with the Collateral Agreement, which such proceeds were delivered to the Indenture Trustee, pursuant to the Collateral Agreement, following the issuance of the Senior Subordinated Notes. The subordination provisions, covenants, events of default and remedies with respect to the Senior Subordinated Notes shall be satisfactory in all respects to the Lenders (it being understood and agreed that the Senior Subordinated Notes shall not have a maturity date prior to the tenth anniversary of the Closing Date and that the subordination provisions, 78 72 covenants, events of default and remedies contained in the Senior Subordinated Notes as issued on December 5, 1996, are acceptable).
(t) Substantially contemporaneously with the first Credit Event, the Collateral Agreement shall have been terminated and all security interests thereunder in favor of the Indenture Trustee shall have been cancelled and discharged.
(u) Allied shall have issued the Laid▇▇▇ ▇▇▇rant to Laid▇▇▇ and All
Appears in 1 contract
First Credit Event. On the Restatement 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, PDF 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, the Lenders and each the Issuing Bank on the Closing DateBank, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇Kirk▇▇▇▇ & ▇lli▇, ▇▇▇▇▇▇▇ LLP, special counsel unsel for Holdings and the U.S. Borrower, substantially to the effect set forth in form and substance reasonably satisfactory Exhibit J, (i) dated the Restatement Closing Date, (ii) addressed to the Issuing Bank, the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b)Lenders, 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 (Ciii) in form and substance reasonably satisfactory to the 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 request such counsel to deliver such opinions.
(cb) All legal matters incident to this Agreement, the borrowings Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative AgentLenders, to the Lenders Issuing Bank and to each Issuing Bank on Cravath, Swaine & Moor▇, ▇▇unsel for the Closing DateAdministrative Agent.
(dc) 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 Restatement 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,
effect, (CB) that the certificate or articles of incorporation, partnership agreement or limited liability agreement incorporation and by-laws of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause July 1, 1997, (i) above,
(DC) 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;
(iiiii) 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 (iii) above; and
and (iviii) such other documents as the Lenders, the Issuing Bank or Cravath, Swaine & Moor▇, ▇▇unsel for the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses)request.
(ed) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates a certificate, dated the Restatement 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, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(l) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower and their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (vi) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Financial Officer of each the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the TransactionsSection 4.01.
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(o) 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 taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the U.S. Borrower and its Subsidiaries, taken as a whole.
(pe) The Administrative Agent shall have received any all Fees and all documents, each in form other amounts due and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) 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 Restatement 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 Borrower hereunder or under any other Loan Document.
(f) The Pledge Agreement shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, and all the outstanding Capital Stock of the Borrower and the Subsidiaries shall have been duly and validly pledged thereunder to the Collateral Agent for the ratable benefit of the Secured Parties and certificates representing such shares, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent; provided that, to the extent to do so would cause adverse tax consequence to the Borrower, (i) neither the Borrower nor any Domestic Subsidiary shall be required to pledge more than 65% of the capital stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary shall be required to pledge the capital stock of any of its Foreign Subsidiaries.
(g) The Security Agreement shall have been duly executed by the Loan Parties party thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent.
(h) The Collateral Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent filings) filings made with respect to the Loan Parties in the states (or other jurisdictions) in which the chief executive office of each such person is located, any offices of such persons in which records have been kept relating to Accounts and the other jurisdictions in which Uniform Commercial Code filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been released.
(i) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Restatement Closing Date and duly executed by a Responsible Officer of the Borrower.
(j) Each of the Security Documents, in form and substance satisfactory to the Lenders, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02, (iii) each of such Security Documents shall have been filed and recorded in the recording office as specified on Schedule 3.19
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, PDF or other electronic 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) (a) Wachtell, Lipton, R▇▇▇▇ & K▇▇▇, special New York counsel, (b) P▇▇▇▇▇▇▇, J▇▇▇▇ & E▇▇▇▇▇▇, P.A., Delaware counsel for the Loan Parties and (c) C▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, in-house counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent (ii) Stikeman Elliott LLP, Canadian counsel for the Loan Parties with respect to the laws of Ontario, British Columbia and Alberta, in form and substance reasonably satisfactory to the Administrative Agent, (iii) Stikeman Elliott LLP, Canadian counsel for the Loan Parties with respect to the laws of Quebec, in form and substance reasonably satisfactory to the Administrative Agent, (iv) Stikeman Elliot LLP, Canadian counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, (v) L▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Law Corporation, Manitoba counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent, (vi) Field LLP, Nunavut counsel for the Loan Parties, in form reasonably satisfactory to the Administrative Agent and (vii) S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Nova Scotia counsel for Holdings and the U.S. BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent 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) in form and substance reasonably satisfactory to the 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.
(c) 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.
(d) The Administrative Agent shall have received in the case of each person that is a Loan Party on the Closing 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, (Ax) 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 (By) 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 Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement agreement, articles of association 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 BorrowerBorrowers, 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, 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, which shall be a date prior to the date of the resolutions described in clause (B) 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, Party and
(E) as to the absence of any pending proceeding for the dissolution dissolution, winding-up 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 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
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date Agent may reasonably request (including including, without limitation, tax identification numbers and addresses).
(e) The Collateral and Guarantee Requirement Requirements required to be satisfied on or prior to the Closing Date shall have been satisfied and the Administrative Agent shall have received completed Perfection Certificates dated the Closing Date and signed or waived 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, tax and judgment (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.
(f) The Existing Credit Agreement Amendment shall have become effective and shall be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Pari Passu Intercreditor Agreement shall have become effective and shall be in form and substance satisfactory to the Administrative Agent.
(h) The U.S. Borrower shall have received net cash proceeds from the issuance of $500 million in aggregate principal amount of New Senior Notes pursuant to the New Senior Note Indenture.
(i) The terms and conditions of the New Senior Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise reasonably satisfactory to the Administrative Agent.
(j) The Lenders shall have received the financial statements referred to in Section 3.05.
(k) The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of the U.S. Borrower, after giving effect to the Transactions, together with a certificate of a Financial Officer of the U.S. Borrower to the effect that such statements accurately present the pro forma financial position of the U.S. Borrower and its Subsidiaries in accordance with GAAP.
(lf) After giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the U.S. Borrower Holdings and their its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the New Senior Notes, (iii) the Existing Notes, (v) no more than $167.0 million of tranche B term loans outstanding under the Existing Credit Agreement and (viii) other Indebtedness permitted pursuant to Section 6.01.
(mg) The Refinancing shall be consummated concurrently with the closing under this Agreement. A payoff letter in respect of the Existing Credit Agreement and release of the Liens with respect thereto, each in form and substance reasonably satisfactory to the Administrative Agent, shall have been delivered.
(h) The Lenders shall have received a solvency certificate substantially the financial statements referred to in the form of Exhibit I and signed by a Financial Officer of each of Holdings and the U.S. Borrower confirming the solvency of Holdings, the U.S. Borrower and its Subsidiaries on a consolidated basis after giving effect to the TransactionsSection 3.05(a).
(n) There has not been any event or occurrence which has resulted in or would reasonably be expected to result in, individually or in the aggregate, any material adverse change in the business, assets, results of operations or condition (financial or otherwise) of the U.S. Borrower or any of its Subsidiaries, after giving effect to the Transactions, taken as a whole, since December 31, 2008.
(oi) No provision of any applicable law or regulation and no judgment, injunction, judgment or order or decree shall prohibit the consummation of the TransactionsTransactions except for laws, regulations, judgments or orders which do not and all would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 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 taken, made or obtained, except for any such actions or filings the failure of which to take, make or obtain would not and would not be material reasonably expected to have, individually or in the U.S. Borrower and its Subsidiariesaggregate, taken as a wholeMaterial Adverse Effect or are not required pursuant to Agreed Security Principles.
(pj) The Administrative Agent shall have received any and all documents, each in form and substance reasonably satisfactory to the Administrative Agent, as it may reasonably request to reflect of record the pari passu nature of the Liens on the Mortgaged Properties granted in favor of the Existing Agent with the Liens granted to the Collateral Agent under the U.S. Mortgages.
(q) The Agents shall have received all fees due and 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 ▇C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLP llp and U.S. and foreign local counselOsler, H▇▇▇▇▇ & Harcourt LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(k) The Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information that may be required by the Lenders in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act including the information described in Section 9.19; provided such information shall have been requested at least 10 Business Days in advance of the Closing Date.
(l) [Reserved].
(m) The Administrative Agent shall have received a solvency certificate in the form of Exhibit G, dated the Closing Date and signed by the chief financial officer of Holdings.
(n) The Administrative Agent shall have received an officer’s certificate in the Form of Exhibit L, dated the Closing Date and signed by an officer of Holdings certifying that all the conditions in Sections 4.01(b), (c) and (d) have been met.
(o) The Collateral Agent shall have received the results, as of a recent date, of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, in each case to the extent reasonably requested by the Collateral Agent prior to the Closing Date.
Appears in 1 contract