First Credit Event. On the Closing Date: (a) The Administrative Agent (or its counsel) shall have received from each party hereto either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, favorable written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions. (c) The Administrative Agent shall have received in the case of each Loan Party each of the following: (i) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) 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, or the general partner, managing member or sole member, of each such Loan Party; and (ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying: (A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, (C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and (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. (d) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, including the results of a search of the UCC (or equivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released, it being understood that, to the extent any lien search or collateral (including the creation, perfection or priority of any security interest) is not or cannot be provided on the Closing Date (other than (i) UCC, tax and judgment lien searches, (ii) the pledge and perfection of domestic assets with respect to which a lien may be perfected by the filing of financing statements under the UCC or (iii) to the extent applicable, the delivery of equity certificates of each Loan Party (other than the Borrower) and any domestic Subsidiaries of the Loan Parties and related stock or other powers) after use of commercially reasonable efforts to do so then the provision of any such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Revolving Facility Loans on the Closing Date, but a perfected security interest shall instead be required promptly after the Closing Date as required under the Collateral and Guarantee Requirement plus any extensions permitted hereunder, in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent; (e) The Transactions and the initial funding under the HoldCo Credit Agreement shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement and all other related documentation (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed), including each of the following: (i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; and (ii) The Lenders shall have received: (A) the financial statements referred to in Section 3.05; and (B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement; (f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01. (g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions. (h) Since January 1, 2011, there has not been any Material Adverse Effect. (i) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document. (j) The (x) Specified Representations and (y) Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date. (k) The Administrative Agent shall have received evidence reasonably satisfactory to it that all Liens and security interests (other than Liens permitted by Section 6.02 and reasonably acceptable to the Administrative Agent) on the Antero Assets have been, or substantially concurrently with the consummation of the Acquisition will be, terminated or released. (l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02. (m) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent at least 10 days in advance of the Closing Date.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (ai) a counterpart of this Agreement signed on behalf of such party or (bii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, a facsimile or other electronic transmission of a PDF copy, (including “.pdf” or “.tif”) 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, favorable a written opinion of (i) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special New York and Delaware counsel for the Loan Parties, and (ii) each local counsel specified on Schedule 4.02(b), in form and substance reasonably satisfactory to the Administrative Agent 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 on the Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinionsAgent.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or Director or similar officer of each Loan Party (other than each of Dutch Loan Party and each IOM Loan Party) dated the followingClosing Date and certifying:
(i) a copy of the memorandum, certificate or articles of incorporationincorporation or association, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Loan Party, (A1) certified (to the extent available in the case of a corporation, certified any non-U.S. jurisdiction) as of a recent date by the Secretary of State (or other similar officialofficial or Governmental Authority in the case of any Loan Party organized outside the United States of America) and of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary or Director or similar officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) official or (B) Governmental Authority in the case of a partnership any Loan Party organized outside the United States of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Loan Party; andAmerica),
(ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying:
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent constituent and governing documents) (to the extent such concept or a similar concept exists under the laws of such Loan Party’s jurisdiction of organization) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) ), and, if applicable, by the shareholders’ meeting of such Loan Party, authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such Person person is a party and, in the case of the 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, partnership agreement or limited liability agreement of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer or director authorized signatory executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Personperson, threatening the existence of such Loan Party.
(d) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, including the results of a search of the UCC PPSA, Uniform Commercial Code (or equivalent under other similar law) equivalent), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in any applicable jurisdictions in the jurisdictions contemplated by the Perfection Certificate United States and Canada and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been releasedbeen, it being understood thator will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the extent any lien search or collateral Administrative Agent for such release shall have been made).
(including e) Except for matters to be completed following the creationClosing Date in accordance with Section 5.11(h), perfection or priority the elements of any security interest) is not or cannot the Collateral and Guarantee Requirement required to be provided satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a duly executed Intercreditor Agreement dated the Closing Date.
(other than f) The Administrative Agent shall have received, in respect of Holdings and the Dutch Borrower, a manager’s certificate dated as of the Closing Date and signed by a Responsible Officer of such Dutch Loan Party, certifying the following items: (i) UCC, tax and judgment lien searchesa copy of the deed of incorporation of such Dutch Loan Party, (ii) an up-to-date copy of the pledge and perfection articles of domestic assets with respect to which a lien may be perfected by the filing association of financing statements under the UCC or such Dutch Loan Party, (iii) an electronic copy of an excerpt of the Netherlands Trade and Companies Register dated on the Closing Date, (iv) an electronic copy of a true, complete and up-to-date board resolutions approving the entry by such Dutch Loan Party into, among others, the Loan Documents, (v) to the extent applicable, an electronic copy of a true, complete and up-to-date shareholders’ resolution approving the delivery resolutions referred to under (iv), (vi) to the extent applicable, an electronic copy of equity certificates a true, complete and up-to-date members’ resolution approving the resolution referred to under (iv) and (vii) a true and complete specimen of signatures for each of the directors or authorized signatories having executed for and on behalf of the Dutch Borrower respectively the Loan Documents.
(g) The Administrative Agent shall have received, in respect of each IOM Loan Party, (i) a registered agent’s certificate dated the Closing Date and signed by an authorised signatory of the relevant registered agent, certifying (attaching documents where relevant) the following matters: that the relevant IOM Loan Party (other than is a company incorporated and existing under the Borrower) Isle of Man Companies ▇▇▇ ▇▇▇▇ and any domestic Subsidiaries the laws of the Isle of Man with the company registration number specified therein; that attached to the certificate is a correct and complete copy of the constitutional documents of the relevant IOM Loan Parties Party, which constitutional documents are in full force and related stock effect as at the date of the certificate; that attached to the certificate is a correct and complete copy of the register of directors of the relevant IOM Loan Party and which includes each date of appointment; that in the case of any corporate director, that director holds a licence granted under the Isle of Man Financial Services ▇▇▇ ▇▇▇▇ which does not exclude acting as a corporate director or other powersis a subsidiary of such a company; that in the case of any corporate director, the identities of the persons authorised to sign on behalf of such corporate director, acting singly or jointly; that attached to the certificate is a correct and complete copy of the register of members of the relevant IOM Loan Party with the name and address of each and the number and type of shares held; that the address of the registered office of the relevant IOM Loan Party; a correct and complete copy of each of the resolutions of the directors and the resolutions of the members passed at duly convened, constituted and conducted meetings of the relevant bodies or as a written resolutions by all of the directors, or as the case may be, members in accordance with the relevant IOM Loan Party’s memorandum and articles of association and confirmation that the resolutions remain in full force and effect as at the date of the certificate; that the registered agent is not aware of any proceedings that are pending or threatened against the relevant IOM Loan Party or of any action having been taken to wind up the relevant entity or to appoint a receiver or manager; that the registered agent holds a licence granted under the Isle of Man Financial Services ▇▇▇ ▇▇▇▇ which permits it to undertake the regulated activity of acting as a registered agent; that all persons providing corporate services (within the meaning of the Isle of Man Financial Services Act 2008) after use of commercially reasonable efforts to the relevant IOM Loan Party are authorised by law to do so then and hold all necessary Isle of Man regulatory consents, authorisations and licences or are exempt from the provision requirement to do so; and that the registered agent will notify the Administrative Agent in the event that it shall cease to act as registered agent for the relevant IOM Loan Party during the existence of any such lien facilities, arrangements or security which have been entered into pursuant to this Agreement; and (ii) the results of a litigation search and/or Collateral shall not constitute a condition precedent to in respect of each IOM Loan Party undertaken at the availability Rolls Office of the Revolving Facility Loans on High Court of Justice in the Isle of Man dated the Closing Date, but a perfected security interest shall instead be required promptly after the Closing Date as required under the Collateral and Guarantee Requirement plus any extensions permitted hereunder, in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent;.
(eh) The Transactions and the initial funding under the HoldCo Credit Agreement Merger shall have been consummated or shall be consummated simultaneously or substantially concurrently with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement terms and all other related documentation (conditions of the Merger Agreement, without material giving effect to any amendment, modification waivers or waiver thereof which is consents by Parent or the Borrowers that are materially adverse to the interests of the Lenders (as reasonably determined by or the Administrative Agent) Arrangers without the prior consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed), including each of the following:
(i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; and
(ii) The Lenders shall have received:
(A) the financial statements referred to in Section 3.05; and
(B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement;
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(h) Since January 1, 2011, there has not been any Material Adverse EffectArrangers.
(i) The Agents conditions in Schedule 3, Part 2.1 of the Merger Agreement (but only with respect to representations and warranties that are material in the interests of the Lenders and only to the extent that Parent or its affiliates have the right to terminate Parent or its affiliates obligations under the Merger Agreement or decline to consummate the Merger as a result of a breach of such representations in the Merger Agreement) shall be satisfied, (ii) the Specified Representations shall be true and correct in all material respects and (iii) the Dutch Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer as to the satisfaction of clauses (i) and (ii) of this Section 4.02(i).
(j) Prior to, simultaneously, or substantially concurrently with the closing under this Agreement, Holdings shall have received a cash equity contribution in an aggregate amount of at least $1,642,000,000 (the “Equity Financing”).
(k) The Arrangers shall have received, prior to the Closing Date, the financial statements described in Section 3.06.
(l) The Administrative Agent and the Arrangers shall have received all costs, fees payable thereto or to and reasonable out-of-pocket expenses (including legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the fees and expenses of any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and advisors) payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required invoiced at least three (3) Business Days prior to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(j) The (x) Specified Representations and (y) Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date.
(k) The Administrative Agent shall have received evidence reasonably satisfactory to it that all Liens and security interests (other than Liens permitted by Section 6.02 and reasonably acceptable to the Administrative Agent) on the Antero Assets have been, or substantially concurrently with the consummation of the Acquisition will be, terminated or released.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02.
(m) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation limitation, the U.S. USA PATRIOT Act, Act at least 5 days prior to the Closing Date (to the extent that such documentation and information has been reasonably requested not less than ten (10) Business Days prior to the Closing Date).
(n) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03.
(o) Since June 12, 2014, there has not been an ▇▇▇▇▇▇▇ Material Adverse Effect.
(p) The Lenders shall have received a solvency certificate substantially in the form of Exhibit I and signed by a Responsible Officer of Holdings confirming the solvency of Holdings and its subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent at least 10 days in advance responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC or PPSA financing statement (or their equivalent in any other applicable jurisdictions), possession by the First Lien Collateral Agent of the certificated securities (if any) evidencing the Equity Interests of the Borrowers and the Subsidiary Loan Parties and the security agreement giving rise to the security interest or filing of Intellectual Property security agreements in the United States Patent and Trademark Office and United States Copyright Office) is not provided on the Closing DateDate after the Loan Parties’ use of commercially reasonable efforts to do so, the provision of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be delivered after the Closing Date in accordance with Section 5.11(h).
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either of the Borrower, the Issuing Banks and the Lenders (ai) a counterpart of this Agreement signed on behalf of such party or (bii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, delivery of a signed signature page of this AgreementAgreement by electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateBank, favorable a written opinion of ▇▇▇▇▇▇▇ Procter LLP, as special counsel for the Loan Parties and a written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Rosenman LLP, as special Texas counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent Parties (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing DateBank, the Administrative Agent, the Collateral Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the followingClosing Date and certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) and of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Loan Party; and),
(ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying:
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such Person person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Personperson, threatening the existence of such Loan Party.
(d) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, including and the results of a search of the UCC Uniform Commercial Code (or equivalent under other similar law) equivalent), tax and judgment filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been releasedbeen, it being understood thator will be simultaneously or substantially concurrently with the closing under this Agreement, to the extent any lien search released (or collateral (including the creation, perfection or priority of any security interest) is not or cannot be provided on the Closing Date (other than (i) UCC, tax and judgment lien searches, (ii) the pledge and perfection of domestic assets with respect to which a lien may be perfected by the filing of financing statements under the UCC or (iii) to the extent applicable, the delivery of equity certificates of each Loan Party (other than the Borrower) and any domestic Subsidiaries of the Loan Parties and related stock or other powers) after use of commercially reasonable efforts to do so then the provision of any such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Revolving Facility Loans on the Closing Date, but a perfected security interest shall instead be required promptly after the Closing Date as required under the Collateral and Guarantee Requirement plus any extensions permitted hereunder, in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent;Agent for such release shall have been made).
(e) The Transactions and the initial funding under the HoldCo Credit Agreement Administrative Agent shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement and all other related documentation (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed), including each of the following:
(i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; and
(ii) The Lenders shall have received:
(A) received the financial statements referred to in Section 3.05; and
(B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement;.
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F C and signed by the chief financial officer or another Responsible a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the TransactionsTransactions on the Closing Date.
(h) Since January 1, 2011, there has not been any Material Adverse Effect.
(ig) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or invoiced at least three Business Days prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of King & Spalding LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan DocumentDocument on or prior to the Closing Date (which amounts may be offset against the proceeds of the Loans).
(jh) The Except as set forth in Schedule 5.12 (xwhich, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement”) Specified Representations and (y) Specified Acquisition Agreement Representations subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be true and correct in all material respects on and satisfied (or waived) as of the Closing Date.
(k) The Administrative Agent shall have received evidence reasonably satisfactory to it that all Liens and security interests (other than Liens permitted by Section 6.02 and reasonably acceptable to the Administrative Agent) on the Antero Assets have been, or substantially concurrently with the consummation of the Acquisition will be, terminated or released.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02.
(mi) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect Section 3.25(a), to the Borrower under applicable extent such information has been requested not less than three (3) Business Days prior to the Closing Date. On or prior to the Closing Date, any Loan Party that qualifies as a “know your legal entity customer” and anti-money laundering rules and regulationsunder the Beneficial Ownership Regulation shall have delivered, including without limitation the U.S. PATRIOT Actto each Lender that so requests, that has been reasonably requested by a Beneficial Ownership Certification in relation to such Loan Party.
(j) The Borrower shall have delivered to the Administrative Agent at least 10 days in advance a certificate dated as of the Closing Date, to the effect set forth in Sections 4.01(b) and (c) hereof.
(k) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of the Borrower or any of the Subsidiaries shall have any third party Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement (including the Existing Roll-Over Letters of Credit, which shall be deemed to be Letters of Credit issued under and subject to this Agreement), other Indebtedness permitted to be incurred or outstanding on or prior to the Closing Date, (ii) other Indebtedness incurred for capital expenditures or working capital purposes and (iii) other Indebtedness permitted under Section 6.01 or approved by the Lead Arranger in their reasonable discretion. For purposes of determining compliance with the conditions specified in Section 4.01 and this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Open Lending Corp)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either of the Borrower, the L/C Issuer and the Lenders (ai) a counterpart of this Agreement signed on behalf of such party or (bii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, delivery of a signed signature page of this AgreementAgreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateL/C Issuer, favorable a written opinion of ▇▇▇▇▇▇▇ ▇(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan PartiesParties and (ii) each local counsel specified on Schedule 4.02(b), in form and substance reasonably satisfactory to the Administrative Agent each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing DateL/C Issuer, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance consistent with similar transactions for the Borrower and reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(c) The Administrative Agent shall have received in a certificate of the case Secretary, Assistant Secretary, Responsible Officer or similar officer of each Loan Party each of dated the followingClosing Date and certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) and of the jurisdiction of its organization, or (2) otherwise certified by a Responsible Officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Loan Party; and),
(ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying:
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such Person person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Personperson, threatening the existence of such Loan Party.
(d) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Date and signed by a Responsible Officer of the BorrowerCEOC, LLC, together with all attachments contemplated thereby, including and the results of a search of the UCC Uniform Commercial Code (or equivalent under other similar law) equivalent), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been releasedbeen, it being understood thator will be simultaneously or substantially concurrently with the closing under this Agreement, to the extent any lien search released (or collateral (including the creation, perfection or priority of any security interest) is not or cannot be provided on the Closing Date (other than (i) UCC, tax and judgment lien searches, (ii) the pledge and perfection of domestic assets with respect to which a lien may be perfected by the filing of financing statements under the UCC or (iii) to the extent applicable, the delivery of equity certificates of each Loan Party (other than the Borrower) and any domestic Subsidiaries of the Loan Parties and related stock or other powers) after use of commercially reasonable efforts to do so then the provision of any such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Revolving Facility Loans on the Closing Date, but a perfected security interest shall instead be required promptly after the Closing Date as required under the Collateral and Guarantee Requirement plus any extensions permitted hereunder, in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent;Agent for such release shall have been made).
(e) The Transactions and the initial funding under the HoldCo Credit Agreement shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement and all other related documentation (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed), including each of the following:
(i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; and
(ii) The Lenders shall have received:
(A) the financial statements referred to in Section 3.05; and
(B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement;
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F I and signed by the chief financial officer or another Responsible a Financial Officer of the Borrower CEOC, LLC confirming the solvency of the Borrower and its the Subsidiaries on a consolidated basis after giving effect to the TransactionsTransactions on the Closing Date.
(h) Since January 1, 2011, there has not been any Material Adverse Effect.
(if) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoicedinvoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan DocumentDocument (which amounts may be offset against the proceeds of the Term B Facility and the Revolving Facility).
(jg) The Except as set forth in Schedule 5.10 (xwhich, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) Specified Representations and (y) Specified Acquisition Agreement Representations subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be true and correct in all material respects on and satisfied (or waived pursuant to the terms hereof) as of the Closing Date.
(kh) The Administrative Agent shall have received evidence reasonably satisfactory to it that all Liens and security interests at least three (other than Liens permitted by Section 6.02 and reasonably acceptable 3) Business Days prior to the Administrative Agent) on the Antero Assets have been, or substantially concurrently with the consummation of the Acquisition will be, terminated or released.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02.
(m) The Administrative Agent shall have received Closing Date all documentation and other information required by regulatory authorities Section 9.20, to the extent such information has been requested not less than ten (10) Business Days prior to the Closing Date.
(i) The Arrangers shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Caesars Entertainment Operating Company, Inc. and its subsidiaries, for the two most recently completed fiscal years ended at least 90 days before the Closing Date and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Caesars Entertainment Operating Company, Inc. and its subsidiaries, for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than any fiscal fourth quarter) after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (a) hereof, in each case prepared in accordance with GAAP in all material respects (provided, that notwithstanding the foregoing, the unaudited consolidated financial statements in the form of, and containing information similar to, those available in respect of the fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016 at ▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇ on the date of the Commitment Letter shall be deemed to satisfy the requirements of this clause (b)). Caesars Entertainment Operating Company, Inc.’s public filings with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b) of this Section 4.01(i).
(j) The Arrangers shall have received a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of CEC and its subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days before the Closing Date, or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 90 days before the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which need not be prepared in compliance with Regulations S-X of the Securities Act, nor include adjustments for fresh start accounting or purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)).
(k) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, neither the Borrower nor any of the Subsidiaries shall have any third party Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement, (ii) Indebtedness of Foreign Subsidiaries, (iii) Indebtedness that is contemplated by, or permitted to remain outstanding pursuant to the Plan of Reorganization and (iv) other Indebtedness incurred in the ordinary course of business of the Borrower and its Subsidiaries for capital expenditures and working capital purposes.
(l) Since February 17, 2017, there shall not have occurred any Borrower Material Adverse Effect.
(a) The Bankruptcy Court shall have entered the Confirmation Order, which shall (i) not be stayed, (ii) be in full force and effect, (iii) be final and non-appealable, and (iv) not have been reversed, vacated, amended, supplemented, or otherwise modified in any manner materially adverse to the interests of the Lenders without the consent of the Arrangers (such consent not to be unreasonably withheld, delayed, denied or conditioned), it being agreed that the Arrangers shall be deemed to have consented to any such amendment, supplement, waiver or modification described in this clause (a) unless they shall object thereto within five (5) Business Days after receipt from the Borrower of written notice thereof, (b) the Plan of Reorganization shall have become effective in accordance with its terms, and all conditions precedent to the effectiveness of the Plan of Reorganization shall have been, or substantially contemporaneously with the closing of the Facilities, will be, satisfied in all material respects or waived (solely to the extent that such waiver is materially adverse to the interest of the Lenders, with the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed, denied or conditioned)), it being agreed that the Arrangers shall be deemed to have consented to any such waiver described in this clause (b) unless they shall object thereto within five (5) Business Days after receipt from the Borrower of written notice of such waiver, (c) the Restructuring Transactions as described and defined in the Plan of Reorganization to occur on the effective date of the Plan of Reorganization shall have been consummated, or substantially concurrently with the closing of the Facilities will be consummated, on the Closing Date, (d) the Debtors shall have deliver an executed release agreement for the benefit of the Arrangers and the Lenders in the form of Exhibit P and (e) the Debtors shall be in compliance in all material respects with the Confirmation Order.
(n) The Borrower shall have filed with the Bankruptcy Court at least three (3) Business Days prior to the Closing Date, a “Plan Supplement” (as defined in the Plan of Reorganization) containing a substantially final draft of this Agreement with respect to the Facilities.
(o) Each Master Lease, each MLSA and each Master Lease Intercreditor Agreement shall have become, or substantially concurrently with the Closing Date shall become, effective.
(p) The Borrower under applicable “know your customer” shall have received all material governmental and anti-money laundering rules regulatory (including gaming) approvals necessary to effect the Transactions on the terms contemplated by this Agreement and regulationsby the Plan of Reorganization.
(q) CEOC, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by LLC shall have delivered to the Administrative Agent at least 10 days in advance a certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i) and Section 4.02(l) hereof. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable (including those referred to in Sections 4.02(d) and (g)) related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the possession of the stock certificates (if any) of the Borrower or any Wholly Owned Domestic Subsidiary) is not or cannot be provided and/or perfected on the Closing Date (1) without undue burden or expense or (2) after the Borrower has used commercially reasonable efforts to do so, then the provision and/or perfection of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Commitments on the Closing Date but, to the extent otherwise required hereunder, shall be delivered after the Closing Date in accordance with Section 5.10.
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 (ai) a counterpart of this Agreement signed on behalf of such party or (bii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or by electronic means transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (i) ▇▇▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, in form Parties and substance (ii) each local and specialist 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 DateBank, 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 as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(c) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the followingClosing Date and certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Loan Party, (A1) if available from an official in the case of a corporationsuch jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) and of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Loan Party; and),
(ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying:
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such Person person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and,
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Personperson, threatening the existence of such Loan Party, and
(vii) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including tax identification numbers and addresses).
(d) The elements of the Collateral and Guarantee Requirement with respect to items required to be completed as of satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, including the results of a search of the UCC Uniform Commercial Code (or equivalent under other similar lawequivalent) filings made with respect to each Loan Party in Washington, D.C., the State of Florida, the jurisdiction in which such Loan Parties Party is formed and existing and lien searches of any other office or jurisdiction in which the jurisdictions contemplated by the Perfection Certificate Collateral Agent determines it would be advisable to conduct such a search, including tax and judgment lien searches and United States Patent and Trademark Office and United States Copyright Office searches, each as of a recent date and listing all effective financing statements, lien notices or other comparable documents that name any Loan Party as debtor, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released, it being understood ; provided that, to the extent any lien search security interest in the intended Collateral or collateral (including any deliverable related to the creation, perfection or priority of any security interest) is not or cannot be provided on interests in the Closing Date intended Collateral (other than (i) UCCexecution and delivery of the Collateral Agreement, tax the Subsidiary Guarantor Pledge Agreements and judgment lien searches, (ii) any Collateral the pledge and perfection of domestic assets with respect to security interest in which a lien may be perfected by the filing of a Uniform Commercial Code financing statements under statement, the UCC registration or (iii) to recording of a Vessel Mortgage in the extent applicable, appropriate ship registry or the delivery of equity stock certificates of each Loan Party (or other than instruments representing Equity Interests and the Security Document giving rise to the security interest therein) is not able to be provided on the Closing Date after the Borrower) and any domestic Subsidiaries of the Loan Parties and related stock or other powers) after ’s use of commercially reasonable efforts to do so then the provision of any so, such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Revolving Facility Loans on the Closing Date, but a perfected security interest shall instead requirements may be required promptly satisfied after the Closing Date as required under the Collateral and Guarantee Requirement plus any extensions permitted hereunder, in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent;accordance with Section 5.10.
(e) The Transactions All amounts due or outstanding in respect of the Existing Credit Agreements and the initial funding under the HoldCo Credit Agreement all other indebtedness of any Loan Party or Subsidiary (other than Indebtedness set forth on Schedule 6.01) shall have been consummated (or shall be consummated substantially simultaneously with or immediately following the closing under this Agreement shall be) paid in accordance with the Acquisition Agreement full, all commitments in respect thereof terminated and all other related documentation (without material amendment, modification or waiver guarantees thereof which is adverse to the Lenders (as reasonably determined by and security therefor discharged and released and terminated and the Administrative Agent) without the prior consent of the Administrative Agent, which consent Agent shall not be unreasonably withheld or delayed), including each of the following:have received reasonably satisfactory evidence thereof.
(i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; and
(iif) The Lenders shall have received:
(A) received the financial statements and interim financial reports referred to in Section 3.05; and
(B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement;
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F C and signed by the chief financial officer or another Responsible a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis basis, in each case, after giving effect to the TransactionsTransactions on the Closing Date.
(h) Since January 1, 2011, there has not been any Material Adverse Effect.
(i) The Agents shall have received all fees payable thereto or to any Arranger or Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (Bermuda) Limited and Cains) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(j) The (x) Specified Representations and (y) Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date.
(ki) The Administrative Agent and/or Collateral Agent (as appropriate) shall have received evidence reasonably satisfactory to it that all Liens insurance certificates, endorsements, copies of cover notes and security interests certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the requirements of Section 5.02 (other than Liens permitted by Section 6.02 and reasonably acceptable to the Administrative Agentincluding any such items also covered in clause (iv) on the Antero Assets have been, or substantially concurrently with the consummation of the Acquisition will be, terminated or released.
paragraph (l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02).
(mj) The Administrative Agent Lenders shall have received received, at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. USA PATRIOT Act, .
(k) 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).
(l) The Collateral Agent shall have received:
(i) evidence that each Vessel Mortgage has been reasonably requested duly executed and delivered by the relevant Subsidiary Guarantor and duly registered in accordance with the laws of Bahamas and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage and subsisting Lien securing the Obligations on the Mortgaged Vessel described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) (x) a Transcript of Register issued by the Bahamas Maritime Authority stating that the applicable Mortgaged Vessel is owned by the applicable Subsidiary Guarantor 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 other Permitted Liens;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the 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 the letters of undertaking required by the relevant Security Documents;
(x) copies of the DOC and SMC referred to in clause (a) of the definition of “ISM Code Documentation,” certified as true and in effect by the relevant Subsidiary Guarantor; and (y) copies of such ISM Code Documentation as the Administrative Agent at least 10 days in advance of may by written notice to the Borrower has requested no later than two Business Days before the Closing Date, certified as true and complete in all material respects by the relevant Subsidiary Guarantor; and
(vi) a copy of the International Ship Security Certificate for each Mortgaged Vessel issued under the ISPS Code, in each case certified as true and in effect by the relevant Subsidiary Guarantor.
(m) The Administrative Agent shall have received a Valuation for each Mortgaged Vessel dated no earlier than March 1, 2013. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either of the Initial Borrower, the L/C Issuer and the Lenders (ai) a counterpart of this Agreement signed on behalf of such party or (bii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, delivery of a signed signature page of this AgreementAgreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateL/C Issuer, favorable a written opinion of ▇▇▇▇▇▇▇ ▇(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan PartiesParties and (ii) each local counsel specified on Schedule 4.02(b), in form and substance reasonably satisfactory to the Administrative Agent each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing DateL/C Issuer, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance consistent with similar transactions for the Borrowers and reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(c) The Administrative Agent shall have received in a certificate of the case Secretary, Assistant Secretary, Responsible Officer or similar officer of each Loan Party each of dated the followingClosing Date and certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) and of the jurisdiction of its organization, or (2) otherwise certified by a Responsible Officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Loan Party; and),
(ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying:
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such Person person is a party and, in the case of the Initial 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 has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Personperson, threatening the existence of such Loan Party.
(d) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Date and signed by a Responsible Officer of the Initial Borrower, together with all attachments contemplated thereby, including and the results of a search of the UCC Uniform Commercial Code (or equivalent under other similar law) equivalent), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been releasedbeen, it being understood thator will be simultaneously or substantially concurrently with the closing under this Agreement, to the extent any lien search released (or collateral (including the creation, perfection or priority of any security interest) is not or cannot be provided on the Closing Date (other than (i) UCC, tax and judgment lien searches, (ii) the pledge and perfection of domestic assets with respect to which a lien may be perfected by the filing of financing statements under the UCC or (iii) to the extent applicable, the delivery of equity certificates of each Loan Party (other than the Borrower) and any domestic Subsidiaries of the Loan Parties and related stock or other powers) after use of commercially reasonable efforts to do so then the provision of any such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Revolving Facility Loans on the Closing Date, but a perfected security interest shall instead be required promptly after the Closing Date as required under the Collateral and Guarantee Requirement plus any extensions permitted hereunder, in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent;Agent for such release shall have been made).
(e) The Transactions and the initial funding under the HoldCo Credit Agreement shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement and all other related documentation (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed), including each of the following:
(i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; and
(ii) The Lenders shall have received:
(A) the financial statements referred to in Section 3.05; and
(B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement;
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F I and signed by the chief financial officer or another Responsible a Financial Officer of the Initial Borrower confirming the solvency of the Initial Borrower and its Subsidiaries on a consolidated basis after giving effect to the TransactionsTransactions on the Closing Date.
(h) Since January 1, 2011, there has not been any Material Adverse Effect.
(if) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoicedinvoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan DocumentDocument (which amounts may be offset against the proceeds of the Term B Facility and the Revolving Facility).
(jg) The Except as set forth in Schedule 5.10 (xwhich, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) Specified Representations and (y) Specified Acquisition Agreement Representations subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be true and correct in all material respects on and satisfied (or waived pursuant to the terms hereof) as of the Closing Date.
(kh) The Administrative Agent shall have received evidence reasonably satisfactory at least three (3) Business Days prior to it that the Closing Date all Liens documentation and security interests other information required by Section 9.20, to the extent such information has been requested not less than ten (10) Business Days prior to the Closing Date.
(i) The Arrangers shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Initial Borrower and its subsidiaries (for the avoidance of doubt, before giving effect to the Closing Date Mergers), for the two most recently completed fiscal years ended at least 90 days before the Closing Date and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Initial Borrower and its subsidiaries (for the avoidance of doubt, before giving effect to the Closing Date Mergers), for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than Liens permitted any fiscal fourth quarter) after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (a) hereof, in each case prepared in accordance with GAAP in all material respects. The Initial Borrower’s public filings with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b) of this Section 4.01(i).
(j) The Arrangers shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of CERP and its subsidiaries, for the two most recently completed fiscal years ended at least 90 days before the Closing Date and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of CERP and its subsidiaries, for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than any fiscal fourth quarter) after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (a) hereof, in each case prepared in accordance with GAAP in all material respects. CERP’s public filings with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b) of this Section 4.01(j).
(k) [Reserved].
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, (i) all Indebtedness under the Existing Credit Agreements shall have been, or shall be substantially concurrently with the initial borrowing hereunder, repaid and all commitments thereunder terminated and (ii) all Indebtedness under the Existing Notes shall have been, or shall be substantially concurrently with the initial borrowing hereunder, defeased, discharged or redeemed pursuant to the terms thereof.
(m) Since December 31, 2016, there shall not have occurred any event or circumstance that has had or would reasonably be expected to have a Material Adverse Effect.
(n) The Initial Borrower shall have received all material governmental and regulatory (including gaming) approvals necessary to effect the Transactions on the terms contemplated by Section 6.02 and reasonably acceptable this Agreement.
(o) The Initial Borrower shall have delivered to the Administrative AgentAgent a certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i) on and Section 4.02(m) hereof.
(p) The Closing Date Mergers shall have been consummated or, substantially concurrently with the Antero Assets initial borrowing hereunder shall be consummated, in all material respects in accordance with the terms described under “The Transactions” in the Senior Unsecured Notes Offering Memorandum.
(q) The proceeds of the Senior Unsecured Notes shall have been, or substantially concurrently with the consummation initial borrowing hereunder shall be, released from escrow pursuant to the terms of the Acquisition will be, terminated or releasedSenior Unsecured Notes Escrow Agreement.
(lr) The Arrangers, the Administrative Agent and the Collateral Agent shall have received a certificate signed (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by a Responsible Officer the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Initial Borrower’s written acknowledgement of receipt of written notification from the Borrower Administrative Agent (1) as to the matters existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence satisfactory to each of the Lead Arrangers that the applicable Loan Party has obtained flood insurance in respect of such Mortgaged Properties to the extent required under the applicable regulations of the Board.
(s) There shall be no action, suit, proceeding (whether administrative, judicial or otherwise) or arbitration (whether or not purportedly on behalf of any Loan Party) at law or in equity, or any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign that are pending or, to the knowledge of the Initial Borrower, threatened against any Loan Party or affecting any property of any Loan Party, that relate to the Loan Documents or the Transactions.
(t) The Loan Parties shall have insurance complying with the requirements of Section 5.02 in place and in full force and effect, and the Administrative Agent, the Collateral Agent and the Arrangers shall each have received (x) a certificate from the Initial Borrower’s insurance broker(s) reasonably satisfactory to them stating that such insurance is in place and in full force and effect and (y) copies of all policies evidencing such insurance (or a binder, commitment or certificates signed by the insurer or a broker authorized to bind the insurer, in which case copies of the applicable policies shall be delivered to the Administrative Agent within sixty (60) days after the Closing Date or such later date as the Administrative Agent may agree in its sole discretion) naming the Collateral Agent as an additional insured and as loss payee (until the Termination Date), in accordance with the terms set forth in clauses (e), (f), (h) and (j) Section 5.02. For purposes of determining compliance with the conditions specified in this Section 4.02.
(m) The , each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received all documentation and other information required by regulatory authorities with respect notice from such Lender prior to the Borrower under applicable “know your customer” and anti-money laundering rules and regulationsClosing Date specifying its objection thereto and, including without limitation in the U.S. PATRIOT Actcase of a Borrowing, that has been reasonably requested by such Lender shall not have made available to the Administrative Agent at least 10 days in advance such Lender’s ratable portion of the Closing Dateinitial Borrowing.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either of the Initial Borrower, the L/C Issuer and the Lenders (ai) a counterpart of this Agreement signed on behalf of such party or (bii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, delivery of a signed signature page of this AgreementAgreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateL/C Issuer, favorable a written opinion of ▇▇▇▇▇▇▇ ▇(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan PartiesParties and (ii) each local counsel specified on Schedule 4.02(b), in form and substance reasonably satisfactory to the Administrative Agent each case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing DateL/C Issuer, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance consistent with similar transactions for the Borrowers and reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(c) The Administrative Agent shall have received in a certificate of the case Secretary, Assistant Secretary, Responsible Officer or similar officer of each Loan Party each of dated the followingClosing Date and certifying:
(i) a copy of the certificate or articles of incorporation, partnership agreement certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, or other relevant constitutional documents under applicable law of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) and of the jurisdiction of its organization, or (2) otherwise certified by a Responsible Officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Loan Party; and),
(ii) a certificate of the Secretary, Assistant Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying:
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such Person person is a party and, in the case of the Initial 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 has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Personperson, threatening the existence of such Loan Party.
(d) The Collateral and Guarantee Requirement with respect to items to be completed as of the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Date and signed by a Responsible Officer of the Initial Borrower, together with all attachments contemplated thereby, including and the results of a search of the UCC Uniform Commercial Code (or equivalent under other similar law) equivalent), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been releasedbeen, it being understood thator will be simultaneously or substantially concurrently with the closing under this Agreement, to the extent any lien search released (or collateral (including the creation, perfection or priority of any security interest) is not or cannot be provided on the Closing Date (other than (i) UCC, tax and judgment lien searches, (ii) the pledge and perfection of domestic assets with respect to which a lien may be perfected by the filing of financing statements under the UCC or (iii) to the extent applicable, the delivery of equity certificates of each Loan Party (other than the Borrower) and any domestic Subsidiaries of the Loan Parties and related stock or other powers) after use of commercially reasonable efforts to do so then the provision of any such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Revolving Facility Loans on the Closing Date, but a perfected security interest shall instead be required promptly after the Closing Date as required under the Collateral and Guarantee Requirement plus any extensions permitted hereunder, in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent;Agent for such release shall have been made).
(e) The Transactions and the initial funding under the HoldCo Credit Agreement shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with the Acquisition Agreement and all other related documentation (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed), including each of the following:
(i) The Acquisition shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement; and
(ii) The Lenders shall have received:
(A) the financial statements referred to in Section 3.05; and
(B) any additional financial statements received by the Borrower on or prior to the Closing Date pursuant to the Acquisition Agreement;
(f) After giving effect to the Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding Indebtedness other than (i) the Loans and other extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 6.01.
(g) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F I and signed by the chief financial officer or another Responsible a Financial Officer of the Initial Borrower confirming the solvency of the Initial Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(h) Since January 1, 2011, there has not been any Material Adverse Effect.
(i) The Agents shall have received all fees payable thereto or to any Lender or to the Joint Lead Arrangers Transactions on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(j) The (x) Specified Representations and (y) Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date.
(k) The Administrative Agent shall have received evidence reasonably satisfactory to it that all Liens and security interests (other than Liens permitted by Section 6.02 and reasonably acceptable to the Administrative Agent) on the Antero Assets have been, or substantially concurrently with the consummation of the Acquisition will be, terminated or released.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (e), (f), (h) and (j) of this Section 4.02.
(m) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent at least 10 days in advance of the Closing Date.
Appears in 1 contract
Sources: Incremental Assumption Agreement (Caesars Entertainment, Inc.)