Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make its initial extension of credit provided for hereunder, is subject to the prior fulfillment, to the satisfaction of Agent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent: (a) the Restatement Effective Date shall occur on or before April 17, 2020; (b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect: (i) a Notice of Borrowing, (ii) the Disbursement Letter, (iii) promissory notes evidencing all Commitments and Loans of the Lenders, as of the Restatement Effective Date; (iv) the Master Reaffirmation Agreement, (v) Trademark Security Agreement; and (vi) with respect to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Restatement Effective Date: (A) a modification to the existing Mortgage, in recordable form; (B) the commitment of the title company to issue an endorsement to the existing title policy ensuring the continued priority of the existing Mortgage; (C) evidence as to whether any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and otherwise sufficient to comply with all applicable rules and regulations relating to flood insurance, in form and substance reasonably acceptable to the Agent; and (D) a legal opinion with respect to the existing Mortgage and the documents referred to in Section 3.1(b)(vi) above, delivered by Borrower’s or such Subsidiary’s counsel in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania; (c) Agent shall have received a certificate from the Secretary of Borrower and each other Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person; (d) Agent shall have received copies of Borrower’s, each other Loan Party’s and each of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented to the Restatement Effective Date, certified by the Secretary of such Person; (e) Agent shall have received a certificate of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate the such Person is in good standing in such jurisdiction; (f) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Person) in which such Person’s failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Person is in good standing in such jurisdictions; (g) subject to Section 3.2(b), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Agent; (h) Agent shall have received an opinion of Borrower’s counsel in form and substance reasonably satisfactory to Agent; (i) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including (a) Real Property taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (j) Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and invoiced at least 2 Business Days prior to the Restatement Effective Date and (b) all fees due and payable on the Restatement Effective Date pursuant to the Fee Letter; (k) Agent shall have received a certificate from the Chief Financial Officer of the Borrower to the effect that the Loan Parties on a consolidated basis are Solvent, immediately after giving effect to this Agreement and the transactions to be consummated on the Restatement Effective Date; (l) Agent shall have received a Beneficial Ownership Certification in relation to any Loan Party, or Subsidiary thereof, requested by the Agent or any Lender at least 2 Business Days prior to the Restatement Effective Date; and (m) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make its the initial extension of Advance (or otherwise to extend any credit provided for hereunder), is subject to the prior fulfillment, to the satisfaction of Agent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following)Agent, of each of the following conditions precedentprecedent set forth below:
(a) the Third Restatement Effective Closing Date shall occur on or before April 17March 29, 20202006;
(b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall then be in full force and effect:
(i) a Notice of Borrowing,the Fee Letter; and
(ii) the Disbursement Letter,
(iii) promissory notes evidencing all Commitments and Loans of the Lenders, as of the Restatement Effective Date;
(iv) the Master Reaffirmation Agreement,
(v) Trademark Security Ratification Agreement; and
(viiii) a consent under the Intercreditor Agreement between Agent and the Term Loan Agent approving the transactions contemplated hereby and under the Term Loan Amendment.
(c) GE Capital shall have entered into an Assignment and Acceptance (the “GE Capital Assignment”) with respect to all Real Property Collateral owned WFF (and duly acknowledged and agreed by Borrower, or any Subsidiary thereof, on the Restatement Effective Date:
(A) a modification to the existing Mortgage, in recordable form;
(B) the commitment of the title company to issue an endorsement to the existing title policy ensuring the continued priority of the existing Mortgage;
(C) evidence as to whether any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and otherwise sufficient to comply with all applicable rules and regulations relating to flood insurance), in form and substance reasonably acceptable satisfactory to WFF, pursuant to which, prior to the Agent; and
effectiveness of this Agreement on the Third Restatement Closing Date, (Di) a legal opinion with respect GE Capital shall have sold and assigned to WFF, and WFF and shall have purchased and assumed from GE Capital, all the existing Mortgage Existing Advances and Commitments of GE Capital under the documents referred to in Section 3.1(b)(viExisting Loan Agreement, and (ii) above, delivered by Borrower’s or such Subsidiary’s counsel in Borrower shall release GE Capital of all claims and liabilities under the State in which the Real Property Collateral is located, including, without limitation, PennsylvaniaLoan Documents;
(cd) Immediately after effectiveness of the GE Capital Assignment, and prior to the effectiveness of this Agreement on the Third Restatement Effective Date, WFF shall have entered into an Assignment and Acceptance (the “WFF Assignment”) with Fortress, pursuant to which WFF shall have sold and assigned to Fortress, and Fortress shall have purchased and assumed from WFF, Commitments of WFF under the Existing Loan Agreement in an amount equal to $17,500,000, together with a pro rata share of the Existing Advances with respect thereto;
(e) Agent shall have received a certificate from the Secretary of Borrower and each other Loan Party (i) attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(df) Agent shall have received copies of Borrower’s, each other Loan Party’s and each of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented to the Third Restatement Effective Closing Date, certified by the Secretary of such PersonBorrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower’s Governing Documents since the Closing Date;
(eg) Agent shall have received a certificate of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 10 days of the Third Restatement Effective Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(h) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Third Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(i) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(j) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Third Restatement Closing Date, certified by the Secretary of such Guarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower’s Governing Documents since last delivered to Agent and certified by the Secretary of such Guarantor;
(k) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Third Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonGuarantor, which certificate shall indicate the that such Person Guarantor is in good standing in such jurisdiction;
(fl) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective SubsidiariesGuarantor, each dated within 30 days of the Third Restatement Effective Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such PersonGuarantor) in which such Person’s its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Person Guarantor is in good standing in such jurisdictionsjurisdiction;
(g) subject to Section 3.2(b), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Agent;
(hm) Agent shall have received an opinion of Borrower’s Obligors’ counsel substantially in the form of the opinion delivered on the Closing Date and otherwise in form and substance reasonably satisfactory to Agent;
(in) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and Borrower, its Subsidiaries Subsidiaries, or their properties, assets, income, and franchises (including (a) Real Property taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(jo) Agent shall have received a certificate from the chief financial officer of Borrower with a copy of the Projections most recently delivered to the Lenders prior to the Third Restatement Closing Date (which Projections shall include projections for the forthcoming 6 months, month by month) attached thereto and certifying that such Projections are still in effect and continue to represent Borrower’s good faith best estimate of the Obligors’ future performance for the periods covered thereby;
(p) Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and invoiced at least 2 Business Days (it being understood that all outstanding Lender Group Expenses shall be charged to the Loan Account, which amounts shall constitute Existing Advances, immediately prior to the Third Restatement Effective Date and (b) all fees due and payable on the Restatement Effective Date pursuant to the Fee LetterClosing Date);
(kq) The Lenders shall have received an updated appraisal of the STAC Value of the Stations, the results of which shall be satisfactory to the Lenders;
(r) Agent shall have received copies of an amendment to the Term Loan Agreement (the “Term Loan Amendment”), which shall be in form and substance satisfactory to the Lenders, together with a certificate from the Chief Financial Officer of the Secretary of Borrower to the effect that the Loan Parties on certifying each such document as being a consolidated basis are Solventtrue, immediately after giving effect to this Agreement correct, and the transactions to be consummated on the Restatement Effective Datecomplete copy thereof;
(ls) Agent shall have received a Beneficial Ownership Certification in relation satisfactory evidence that all of the conditions precedent to any the effectiveness of the Term Loan Party, Amendment have been (or Subsidiary thereof, requested concurrently are being) satisfied or waived by the Agent or Term Loan Agent;
(t) Borrower shall have requested an initial Advance on the Third Restatement Closing date in an amount equal to $10,000,000 plus accrued interest on, fees (including any Lender at least 2 Business Days prior prepayment fee) and expenses relating to the Term Loan to be used as a prepayment of the Term Loan in accordance with the Term Loan Amendment (the “Term Loan Prepayment Advance”); the parties hereto hereby agree that such Term Loan Prepayment Advance shall be used and applied for such prepayment of the Term Loan (and Agent and Lenders shall be satisfied that, concurrently with the effectiveness hereof on the Third Restatement Effective Date; and, such Term Loan Prepayment Advance is so used and applied as a prepayment of the Term Loan);
(mu) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or its Subsidiaries of the any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby;
(v) The Lenders shall have received satisfactory evidence that Affiliation Agreements have been signed with The CW Television Network or MyNetworkTV on terms and conditions satisfactory to the Lenders; and
(w) no Material Adverse Change shall have occurred (as determined in the sole discretion of Agent and each Lender).
Appears in 1 contract
Sources: Loan and Security Agreement (Acme Communications Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make its initial extension an Advance on the occasion of credit provided for hereunder, the Initial Extension of Credit hereunder is subject to the prior fulfillment, to the satisfaction of Agent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedentprecedent before or concurrently with the Initial Extension of Credit and this Agreement shall become effective on and as of the date hereof (the “Closing Date”) when all such conditions shall have been satisfied:
(a) The majority of the Restatement Effective Date shall occur on or before April 17, 2020;
(b) Agent Term C Lenders shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Notice of Borrowing,
(ii) the Disbursement Letter,
(iii) promissory notes evidencing all Commitments and Loans of the Lenders, as of the Restatement Effective Date;
(iv) the Master Reaffirmation Agreement,
(v) Trademark Security Agreement; and
(vi) with respect to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Restatement Effective Date:
(A) a modification consented to the existing Mortgage, in recordable form;
(B) the commitment of the title company to issue an endorsement to the existing title policy ensuring the continued priority of the existing Mortgage;
(C) evidence as to whether Refinancing and any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and otherwise sufficient to comply with all applicable rules and regulations relating to flood insurance, in form and substance reasonably acceptable to the Agent; and
(D) a legal opinion with respect to the existing Mortgage and the documents referred to in Section 3.1(b)(vi) above, delivered by Borrower’s or such Subsidiary’s counsel in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania;
(c) Agent shall have received a certificate from the Secretary of Borrower and each other Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing its execution, delivery, and performance of transactions contemplated under this Agreement and the other Loan Documents Documents.
(b) The Administrative Agent shall be reasonably satisfied with the corporate and legal structure and capitalization of each Loan Party, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to which such Person is a party, structure or capitalization.
(iic) authorizing specific officers The Administrative Agent shall be reasonably satisfied that all Debt of such Person to execute the same, U.S. Borrower and (iii) attesting its Restricted Subsidiaries outstanding immediately before giving effect to the incumbency Refinancing, other than the Debt (the “Surviving Debt”) identified on Schedule 3.01(c), has been prepaid, redeemed or defeased in full or otherwise satisfied and signatures of extinguished and that all such specific officers of such Person;Debt on Schedule 3.01(c) shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(d) On the Closing Date, the Leverage Ratio, determined on a pro forma basis after giving effect to the Refinancing and any other transactions contemplated under the Loan Documents, shall not exceed 7.00:1.
(e) Before giving effect to the Refinancing and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of any Loan Party or any of its Subsidiaries since December 31, 2002.
(f) There shall have occurred no material adverse change in loan syndication, financial or capital market conditions generally that has impaired or could reasonably be expected to impair syndication of the Facilities.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note, any other Loan Documents, any Related Document or the consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect or (ii) that, following the consummation of the Refinancing, either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Borrower and such Subsidiaries reflected in the Information Memorandum; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with the Refinancing, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Loan Documents and the Related Documents and the transactions contemplated thereby.
(j) The Administrative Agent shall have received copies of Borrower’sthe fees referred to in Section 2.08(c) to be received on the Closing Date, each other Loan Party’s and each of their respective Subsidiaries’ Governing DocumentsLead Arranger shall have received fees under a separate letter agreement, as amendeddated May 21, modified2003, or supplemented to between the Restatement Effective Date, certified by the Secretary of U.S. Borrower and such Person;Lead Arranger.
(ek) The Administrative Agent shall have received a certificate on or before the day of status with respect to Borrower, each other Loan Party and each the Initial Extension of their respective SubsidiariesCredit the following, each dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate the such Person is in good standing in such jurisdiction;
day (f) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Person) in which such Person’s failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Person is in good standing in such jurisdictions;
(g) subject to Section 3.2(bunless otherwise specified), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Agent;
(h) Agent shall have received an opinion of Borrower’s counsel in form and substance reasonably satisfactory to Agent;the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) Agent shall have received satisfactory evidence The Notes (including other than the Term C Notes) payable to the order of the Lenders (other than the Term C Lenders).
(ii) Certified copies of the resolutions of the Board of Directors of each Borrower and each other Loan Party approving each Loan Document to which it is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Refinancing, this Agreement, the Notes and each other Loan Document.
(iii) A copy of a certificate of the chief financial officer Secretary of Borrower) that all tax returns required to be filed by Borrower and State of the jurisdiction of its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their propertiesincorporation, assets, income, and franchises (including (a) Real Property taxes and sales taxes, which could, individually or in the aggregatecase of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario (the “Ontario Ministry”), dated reasonably be expected near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to result such Borrower’s or such other Loan Party’s charter on file in a liability his office, (B) each such Borrower and each such other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State or any Province of the jurisdiction of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;incorporation.
(jiv) A certificate of each Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and invoiced at least 2 Business Days prior to the Restatement Effective Date and (b) all fees due and payable on the Restatement Effective Date pursuant to the Fee Letter;
(k) Agent shall have received a certificate from the Chief Financial Officer of the Borrower to the effect that the Loan Parties on a consolidated basis are Solvent, immediately after giving effect to this Agreement and the transactions to be consummated on the Restatement Effective Date;
(l) Agent shall have received a Beneficial Ownership Certification in relation to any each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or Subsidiary thereof, requested by the Agent a Vice President and its Secretary or any Lender at least 2 Business Days prior Assistant Secretary (or in the case of Accuride Erie by a duly authorized officer of the sole member of its general partner), dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Restatement Effective Date; andcharter of such Borrower or such other Loan Party since the date of the certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents in all material respects as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(mv) A certificate of the Secretary or an Assistant Secretary of each Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with Loan Party certifying the execution names and delivery by Borrower or its Subsidiaries true signatures of the officers of such Borrower and such other Loan Documents Party authorized to sign this Agreement, the Notes and each other Loan Document to which they are or with are to be parties and the consummation of the transactions contemplated therebyother documents to be delivered hereunder and thereunder.
Appears in 1 contract
Sources: Credit Agreement (Accuride Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make its the initial extension of Advance (or otherwise to extend any credit provided for hereunder), is subject to the prior fulfillment, to the satisfaction of Agent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following)Lender, of each of the following conditions precedentprecedent set forth below:
(a) satisfaction of the Restatement Effective Date shall occur on or before April 17, 2020conditions precedent set forth in Section 3.1 above;
(b) Agent Parent shall have received each the proceeds of the following documentsSenior Notes in an amount sufficient, together with the equity investment by ValueAct Capital in Seitel Holdings and Borrowers’ and their Subsidiaries’ cash on hand, to fully redeem and cancel the Existing Notes tendered for payment and to pay all merger consideration for the Acquisition and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(c) The Existing Notes tendered for payment shall have been fully redeemed and cancelled;
(d) The Acquisition shall have been consummated and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(e) Borrowers shall have Excess Availability of $20,000,000.00 on the Closing Date immediately after giving effect to the Acquisition and Lender shall have received evidence thereof, reasonably satisfactory to Lender;
(f) Lender shall have received the Parent Stock Pledge, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion, duly executed, and each such document shall be in full force and effect:
(i) a Notice of Borrowing,
(ii) the Disbursement Letter,
(iii) promissory notes evidencing all Commitments and Loans of the Lenders, as of the Restatement Effective Date;
(iv) the Master Reaffirmation Agreement,
(v) Trademark Security Agreement; and
(vig) with respect Lender shall have received the opinion Dechert LLP, as counsel to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Restatement Effective Date:
(A) a modification to the existing Mortgage, in recordable form;
(B) the commitment of the title company to issue an endorsement to the existing title policy ensuring the continued priority of the existing Mortgage;
(C) evidence as to whether any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and otherwise sufficient to comply with all applicable rules and regulations relating to flood insuranceSeitel Holdings, in form and substance reasonably acceptable satisfactory to the Agent; and
(D) a legal opinion with respect to the existing Mortgage and the documents referred to in Section 3.1(b)(vi) above, delivered by Borrower’s or such Subsidiary’s counsel Lender in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania;
(c) Agent shall have received a certificate from the Secretary exercise of Borrower and each other Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of Borrower’s, each other Loan Party’s and each of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented to the Restatement Effective Date, certified by the Secretary of such Person;
(e) Agent shall have received a certificate of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate the such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Person) in which such Person’s failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Person is in good standing in such jurisdictions;
(g) subject to Section 3.2(b), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to AgentPermitted Discretion;
(h) Agent the Senior Notes shall (i) have received an opinion of Borrower’s counsel been issued pursuant to the Senior Note Offering in form and substance reasonably satisfactory to Agent;
(i) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower Lender and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or counsel in their propertiesPermitted Discretion, assets(ii) not mature, incomeby their terms until at least 90 days after the Maturity Date, and franchises (including (aiii) Real Property taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any general unsecured obligations of its Subsidiaries in excess of $10,000Parent, and (biv) payroll taxes) have been paid prior be effectively, but not contractually subordinated to delinquency, except such taxes that are the subject of a Permitted Protest;
(j) Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement indebtedness and invoiced at least 2 Business Days prior to the Restatement Effective Date and (b) all fees due and payable on the Restatement Effective Date pursuant to the Fee Letter;
(k) Agent shall have received a certificate from the Chief Financial Officer of the Borrower to the effect that the Loan Parties on a consolidated basis are Solvent, immediately after giving effect to this Agreement and the transactions to be consummated on the Restatement Effective Date;
(l) Agent shall have received a Beneficial Ownership Certification in relation to any Loan Party, or Subsidiary thereof, requested by the Agent or any Lender at least 2 Business Days prior to the Restatement Effective Date; and
(m) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of obligations owing under the Loan Documents or with to the consummation extent of the transactions contemplated thereby.value of the assets and the other collateral securing the Indebtedness and Obligations under the Loan Documents
Appears in 1 contract
Sources: Loan and Security Agreement (Matrix Geophysical, Inc.)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make its the initial extension of Advance (or otherwise to extend any credit provided for hereunder), is subject to the prior fulfillment, to the satisfaction of Agent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following)Lender, of each of the following conditions precedentprecedent set forth below:
(a) satisfaction of the Restatement Effective Date shall occur on or before April 17, 2020conditions precedent set forth in Section 3.1 above;
(b) Agent Parent shall have received each the proceeds of the following documentsSenior Notes in an amount sufficient, together with the equity investment by ValueAct Capital in Seitel Holdings and Borrowers' and their Subsidiaries' cash on hand, to fully redeem and cancel the Existing Notes tendered for payment and to pay all merger consideration for the Acquisition and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(c) The Existing Notes tendered for payment shall have been fully redeemed and cancelled;
(d) The Acquisition shall have been consummated and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(e) Borrowers shall have Excess Availability of $20,000,000.00 on the Closing Date immediately after giving effect to the Acquisition and Lender shall have received evidence thereof, reasonably satisfactory to Lender;
(f) Lender shall have received the Parent Stock Pledge, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion, duly executed, and each such document shall be in full force and effect:
(i) a Notice of Borrowing,
(ii) the Disbursement Letter,
(iii) promissory notes evidencing all Commitments and Loans of the Lenders, as of the Restatement Effective Date;
(iv) the Master Reaffirmation Agreement,
(v) Trademark Security Agreement; and
(vig) with respect Lender shall have received the opinion Dechert LLP, as counsel to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Restatement Effective Date:
(A) a modification to the existing Mortgage, in recordable form;
(B) the commitment of the title company to issue an endorsement to the existing title policy ensuring the continued priority of the existing Mortgage;
(C) evidence as to whether any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and otherwise sufficient to comply with all applicable rules and regulations relating to flood insuranceSeitel Holdings, in form and substance reasonably acceptable satisfactory to the Agent; and
(D) a legal opinion with respect to the existing Mortgage and the documents referred to in Section 3.1(b)(vi) above, delivered by Borrower’s or such Subsidiary’s counsel Lender in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania;
(c) Agent shall have received a certificate from the Secretary exercise of Borrower and each other Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of Borrower’s, each other Loan Party’s and each of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented to the Restatement Effective Date, certified by the Secretary of such Person;
(e) Agent shall have received a certificate of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate the such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Person) in which such Person’s failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Person is in good standing in such jurisdictions;
(g) subject to Section 3.2(b), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to AgentPermitted Discretion;
(h) Agent the Senior Notes shall (i) have received an opinion of Borrower’s counsel been issued pursuant to the Senior Note Offering in form and substance reasonably satisfactory to Agent;
(i) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower Lender and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or counsel in their propertiesPermitted Discretion, assets(ii) not mature, incomeby their terms until at least 90 days after the Maturity Date, and franchises (including (aiii) Real Property taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any general unsecured obligations of its Subsidiaries in excess of $10,000Parent, and (biv) payroll taxes) have been paid prior be effectively, but not contractually subordinated to delinquency, except such taxes that are the subject of a Permitted Protest;
(j) Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement indebtedness and invoiced at least 2 Business Days prior to the Restatement Effective Date and (b) all fees due and payable on the Restatement Effective Date pursuant to the Fee Letter;
(k) Agent shall have received a certificate from the Chief Financial Officer of the Borrower to the effect that the Loan Parties on a consolidated basis are Solvent, immediately after giving effect to this Agreement and the transactions to be consummated on the Restatement Effective Date;
(l) Agent shall have received a Beneficial Ownership Certification in relation to any Loan Party, or Subsidiary thereof, requested by the Agent or any Lender at least 2 Business Days prior to the Restatement Effective Date; and
(m) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of obligations owing under the Loan Documents or with to the consummation extent of the transactions contemplated thereby.value of the assets and the other collateral securing the Indebtedness and Obligations under the Loan Documents
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make its initial extension an Advance on the occasion of credit provided for hereunder, the Initial Extension of Credit hereunder is subject to the prior fulfillment, to the satisfaction of Agent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), following conditions precedent before or concurrently with the Initial Extension of each Credit and this Agreement shall become effective on and as of the following date hereof (the “Closing Date”) when all such conditions precedentshall have been satisfied:
(a) The Administrative Agent shall have received this Agreement, executed and delivered by each Borrower, each Initial Lender, the Restatement Effective Date shall occur on or before April 17Initial Issuing Bank, 2020;the Existing Issuing Bank, the Swing Line Bank, the Agents and the Lead Arrangers.
(b) Agent The following transactions shall have received each of the following documentsbeen consummated, in form each case on terms and substance conditions reasonably satisfactory to Agent, duly executed, and each such document shall be in full force and effectthe Lender Parties:
(i) a Notice the Merger shall have been consummated in accordance with the terms of Borrowing,the Merger Agreement and in compliance in all material respects with all applicable Requirements of Law, and no provision of the Merger Agreement shall have been waived, amended, supplemented or otherwise modified (unless such waiver, amendment, supplement or other modification, in the reasonable judgment of the Administrative Agent, is not adverse in any material respect to the interests of the Lender Parties);
(ii) the Disbursement Letter,U.S. Borrower shall have received at least $275,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes; and
(iii) promissory notes evidencing the Refinancing shall have been consummated and satisfactory arrangements shall have been made for the termination of all Commitments Liens granted in connection with TTI’s first and Loans second lien credit agreements.
(c) The Administrative Agent shall be reasonably satisfied with the corporate and legal structure and capitalization of each Loan Party, including the terms and conditions of the Lenderscharter, as bylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied that all Debt of the Restatement Effective Date;U.S. Borrower and its Restricted Subsidiaries outstanding immediately before giving effect to the Refinancing, other than the Debt (the “Surviving Debt”) identified on Schedule 3.01(d), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Debt on Schedule 3.01(d) shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(ivi) The Senior Leverage Ratio, determined on a pro forma basis after giving effect to the Master Reaffirmation Agreement,Transactions and with such other adjustments as are reasonably satisfactory to the Administrative Agent and the Lead Arrangers, shall not exceed 4.10:1.00 for the twelve-month period ended on November 30, 2004, and the Administrative Agent shall have received from the U.S. Borrower support for such calculations of a nature that is reasonably satisfactory to the Administrative Agent and the Lead Arrangers.
(vii) Trademark Security Agreement; and
(vi) with respect to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Restatement Effective Date:
The ratio of (A) a modification (1) total Funded Debt of the U.S. Borrower and its Restricted Subsidiaries, minus (2) the amount of cash in excess of $5,000,000 reflected on the U.S. Borrower’s balance sheet on the Closing Date after giving effect to the existing MortgageTransactions, minus (3) the aggregate amount of TTI’s 12.5% senior subordinated notes due 2010 and the U.S. Borrower’s 9.25% senior subordinated notes due 2008 (collectively, the “Old Notes”), in recordable form;
each case for which cash sufficient for the repayment, redemption or repurchase thereof is then on deposit with the applicable trustee, to (B) the commitment Consolidated EBITDA of the title company to issue an endorsement U.S. Borrower and its Restricted Subsidiaries for the twelve-month period ending on November 30, 2004 shall not exceed 5.35:1.00; provided that Consolidated EBITDA shall be calculated giving effect to the existing title policy ensuring Transactions as though the continued priority Transactions had occurred at the beginning of such twelve-month period, and the Administrative Agent shall have received from the U.S. Borrower support for such calculations of a nature that is reasonably satisfactory to the Administrative Agent and the Lead Arrangers.
(f) Before and after giving effect to the Transactions and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of any Loan Party or any of its Subsidiaries since December 31, 2003.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of the existing Mortgage;Merger, this Agreement, any Note, any other Loan Documents, any Related Document or the consummation of the transactions contemplated hereby.
(Ch) evidence as Nothing shall have come to whether the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any such Real Property Collateral is located in an area identified by material respect or (ii) that, following the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) andconsummation of the Transactions, if it is, evidence that either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Subsidiary has obtainedBorrower and such Subsidiaries reflected in the Information Memorandum; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with insurance companies as the Transactions, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and otherwise sufficient to comply with all applicable rules and regulations relating to flood insurance, in form and substance not reasonably acceptable to the Administrative Agent) and shall remain in effect; andall applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Transactions, the Loan Documents and the Related Documents and the transactions contemplated thereby.
(Dj) a legal opinion with respect to the existing Mortgage The Lenders and the documents referred to in Section 3.1(b)(vi) above, delivered by Borrower’s or such Subsidiary’s counsel in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania;
(c) Administrative Agent shall have received a certificate from the Secretary of Borrower and each other Loan Party (i) attesting all fees required to the resolutions of such Person’s Board of Directors authorizing its execution, deliverybe paid, and performance all expenses for which invoices have been presented (including the reasonable fees and expenses of this Agreement and legal counsel), on or before the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;Closing Date.
(dk) The Administrative Agent shall have received copies on or before the day of Borrower’s, each other Loan Party’s and each the Initial Extension of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented to Credit the Restatement Effective Date, certified by the Secretary of such Person;
(e) Agent shall have received a certificate of status with respect to Borrower, each other Loan Party and each of their respective Subsidiariesfollowing, each dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate the such Person is in good standing in such jurisdiction;
day (f) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Person) in which such Person’s failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Person is in good standing in such jurisdictions;
(g) subject to Section 3.2(bunless otherwise specified), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Agent;
(h) Agent shall have received an opinion of Borrower’s counsel in form and substance reasonably satisfactory to Agent;the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) Agent shall have received satisfactory evidence The Notes payable to the order of the Lenders.
(including ii) Certified copies of the resolutions of the Board of Directors of each Borrower and each other Loan Party approving each Loan Document to which it is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions, this Agreement, the Notes, each other Loan Document and each Subordinated Debt Document.
(iii) A copy of a certificate of the chief financial Secretary of State of the jurisdiction of its incorporation or formation, or in the case of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario (the “Ontario Ministry”), dated reasonably near the date of the Initial Extension of Credit, listing the charter (or other formation document) of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower’s or such other Loan Party’s charter (or other formation document) on file in his office, (B) each such Borrower and each such other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated or formed and in good standing under the laws of the State or Province of the jurisdiction of its incorporation or formation.
(iv) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or in the case of Accuride Erie by a duly authorized officer of the sole member of its general partner), dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter (or other formation document) of such Borrower or such other Loan Party since the date of the certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws (or other organizational document) of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents in all material respects as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower and such other Loan Party authorized to sign this Agreement, the Notes and each other Loan Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vi) The Guarantee and Collateral Agreement, duly executed by the U.S. Borrower and each of the U.S. Borrower’s Domestic Subsidiaries, together with:
(A) certificates representing 100% of the issued and outstanding stock (or other ownership or profit interest) owned by the Loan Parties, accompanied by undated stock powers executed in blank; provided that all tax returns no more than 66% of the issued and outstanding stock of any first-tier Foreign Subsidiaries of the U.S. Borrower and its Domestic Subsidiaries shall be required to be pledged,
(B) copies of proper financing statements or amendments thereto, to be duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Guarantee and Collateral Agreement, covering the Collateral described therein,
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all other effective financing statements filed in the jurisdictions where the Loan Parties are incorporated and where their assets are located that name the U.S. Borrower or any other Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of recordings and filings, if any, of or with respect to the Guarantee and Collateral Agreement that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under any of the Collateral Documents (including, without limitation, any action so deemed necessary or desirable as a result of changes in the names or corporate structure of any of the U.S. Borrower’s subsidiaries) has been taken and remains in full force and effect, and
(F) evidence of the insurance, if any, required by the terms of any of the Collateral Documents.
(vii) A duly executed confirmation and amendment with respect to the Mexican Pledge Agreement (the “Mexican Confirmation and Amendment”) and evidence of the completion of all recordings, filings and other actions necessary under Mexican law to perfect and protect the first priority pledge created by the Mexican Pledge Agreement of 65% of the stock of the Mexican Subsidiary, in the understanding that the Administrative Agent hereby reserves all its rights under the Mexican Pledge Agreement to assure continuance of its full force and effect for the benefit of each of the Secured Parties and, therefore, that such Mexican Pledge Agreement shall continue in full force and effect to secure the Obligations.
(viii) A duly executed confirmation and amendment made by the Canadian Borrower to the Administrative Agent for the benefit of the Secured Parties under the Canadian Security Agreement (the “Canadian Confirmation and Amendment”) and evidence of the completion of all recordings, filings and other actions necessary under Canadian law to perfect and protect the first priority security interest created by the Canadian Borrower under the Canadian Security Agreement.
(ix) Fully executed amendments, supplements, restatements or other modifications (the “Mortgage Amendments”) of the Mortgages covering the properties listed on Schedule 3.01(k)(ix) and marked with an asterisk (the “Existing Mortgaged Properties”) to the extent necessary to continue to secure the Obligations of the Loan Parties under this Agreement or any other Loan Document.
(x) Certified copies of each of the Subordinated Debt Documents and the Merger Agreement, duly executed by the parties thereto, together with all agreements, instruments and documents delivered in connection therewith.
(xi) Such financial, business and other information regarding each Loan Party as the Lender Parties shall have reasonably requested, including, without limitation, (A) audited Consolidated financial statements of each of the U.S. Borrower and its Consolidated Subsidiaries have been timely filed and all taxes upon of TTI and its Consolidated Subsidiaries for Fiscal Year 2003, (B) unaudited Consolidated financial statements of each of the U.S. Borrower and its Consolidated Subsidiaries or their properties, assets, income, and franchises (including (a) Real Property taxes of TTI and sales taxes, which could, individually or its Consolidated Subsidiaries for each Fiscal Quarter in the aggregate, reasonably be expected to result in a liability to Borrower or any of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such taxes Fiscal Year 2004 that are the subject of a Permitted Protest;
(j) Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and invoiced at least 2 Business Days ended more than 45 days prior to the Restatement Effective Closing Date and for the twelve-month period ended November 30, 2004, (bC) the pro forma financial statements described in Section 4.01(g) and (D) Consolidated forecasted financial statements of the U.S. Borrower and its Consolidated Subsidiaries for the five-year period after the Closing Date, prepared on a quarterly basis for the first year after the Closing Date and on an annual basis for each year thereafter; all fees due and payable on of the Restatement Effective Date foregoing (including, without limitation, the statements to be delivered pursuant to clauses (A) through (D) above) to be in form and substance reasonably satisfactory to the Fee Letter;Administrative Agent (and, in the case of clause (B), to the Lead Arrangers).
(kxii) Agent shall have received a certificate from Certificates, in substantially the Chief Financial Officer form of Exhibit H hereto, attesting to the Solvency of each of the Borrower to the effect that the Loan Parties on a consolidated basis are Solvent, immediately Borrowers after giving effect to the Transactions and the other transactions contemplated hereby, from its chief financial officer or, in the case of the Canadian Borrower, its assistant treasurer.
(xiii) Evidence that ratings of the Facilities from each of ▇▇▇▇▇’▇ and S&P are in effect on the Closing Date.
(xiv) A favorable opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Borrowers, in substantially the form of Exhibit D hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xv) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel of the U.S. Borrower, in substantially the form of Exhibit E hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xvi) A favorable opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Canadian Borrower, in substantially the form of Exhibit F to this Agreement and the transactions as to be consummated on the Restatement Effective Date;
such other matters (l) Agent shall have received a Beneficial Ownership Certification in relation to any Loan Partyincluding, or Subsidiary thereofwithout limitation, requested by the Agent or any Lender at least 2 Business Days prior to the Restatement Effective Date; and
(m) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby.a
Appears in 1 contract
Sources: Credit Agreement (Accuride Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make its initial extension an Advance on the occasion of credit provided for hereunder, the Initial Extension of Credit hereunder is subject to the prior fulfillment, to the satisfaction of Agent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedentprecedent before or concurrently with the Initial Extension of Credit:
(a) The Acquisition shall have been consummated in accordance with the Restatement Effective Date shall occur on terms of the Stock Purchase Agreement without any waiver or before April 17amendment thereto (unless such amendment or waiver in the reasonable judgment of the Administrative Agent is not adverse in any material respect to the interests of the Lender Parties), 2020;and in compliance with all applicable laws.
(b) The U.S. Borrower (i) shall have received not less than $108,000,000 in cash for the purchase of common equity by the Investor Group, representing approximately 90% of the outstanding common equity, and (ii) shall have received approximately $200,000,000 in gross cash proceeds from the sale of the Subordinated Notes.
(c) The Administrative Agent shall be reasonably satisfied with the corporate and legal structure and capitalization of each Loan Party, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "SURVIVING DEBT"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Surviving Debt shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(e) Before giving effect to the Acquisition and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of any Loan Party or any of its Subsidiaries since June 30, 1997.
(f) There shall have occurred no material adverse change in loan syndication, financial or capital market conditions generally that has impaired or could reasonably be expected to impair syndication of the Facilities.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of the Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Acquisition, either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Borrower and such Subsidiaries reflected in the Information Memorandum and (iii) that the Acquisition will have a Material Adverse Effect; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby.
(j) The Administrative Agent shall have received the fees referred to in Section 2.08(c) to be received on the Closing Date and under a separate letter agreement dated December 2, 1997 between the U.S. Borrower and the Administrative Agent.
(k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of each Borrower and each other Loan Party approving each Loan Document and Related Document to which it is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document.
(iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, or in the case of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each such Borrower and each such other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State or Province of the jurisdiction of its incorporation.
(iv) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of such Borrower or such other Loan Party since the date of the certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents in all material respects as though made on and as of the date of the Initial Extension of Credit, (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default, and (F) in the case of the U.S. Borrower only, the completion of the restructuring contemplated by the memorandum attached hereto as Schedule 3.01(l).
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vi) A pledge agreement in substantially the form of Exhibit D hereto (together with each other pledge agreement or Pledge Agreement Supplement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "PLEDGE AGREEMENT"), duly executed by the U.S. Borrower and the Canadian Borrower, together with:
(A) certificates representing 100% of the issued and outstanding stock (or other ownership or profit interest) owned by the U.S. Borrower of all of its first-tier Subsidiaries (other than Unrestricted Subsidiaries), accompanied by undated stock powers executed in blank; PROVIDED that no more than 66% of the issued and outstanding stock of any first-tier Foreign Subsidiaries of the U.S. Borrower (other than Unrestricted Subsidiaries and the Canadian Borrower) shall be required to be pledged,
(B) copies of proper financing statements, to be duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name the U.S. Borrower or any other Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement has been taken.
(vii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty required to be delivered as of the Closing Date pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "SUBSIDIARIES GUARANTY"), duly executed by each of the following documentsSubsidiary Guarantors.
(viii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith.
(ix) Such financial, business and other information regarding each Loan Party as the Lender Parties shall have reasonably requested, including, without limitation, (A) audited Consolidated financial statements of the U.S. Borrower and its Consolidated Subsidiaries for Fiscal Years 1995 and 1996, (B) unaudited Consolidated financial statements of the U.S. Borrower and its consolidated Subsidiaries for each Fiscal Quarter in Fiscal Year 1997 that ended more than 45 days prior to the initial Closing Date, (C) a Consolidated pro forma balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as of the Closing Date after giving effect to the Acquisition and other transactions and financings contemplated by the Related Documents and the Loan Documents, and (D) Consolidated forecasted financial statements of the U.S. Borrower and its Consolidated Subsidiaries for the five-year period after the Closing Date, all of the foregoing (including, without limitation, the statements to be delivered pursuant to clauses (A) through (D) above) to be in form and substance reasonably satisfactory to the Administrative Agent.
(x) Letters and certificates, in substantially the form of Exhibit H and I hereto, respectively, attesting to the Solvency of each of the Borrowers after giving effect to the Acquisition and the other transactions contemplated hereby, from its chief financial officer or, in the case of the Canadian Borrower, its assistant treasurer, and a nationally recognized appraisal firm, valuation consultant or investment banking firm satisfactory to the Administrative Agent.
(xi) A favorable opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, U.S. counsel for the Borrowers, in substantially the form of Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xii) A favorable opinion of Osler, ▇▇▇▇▇▇ & Harcourt, Canadian counsel for the Canadian Borrower, in substantially the form of Exhibit F-2 and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiii) A favorable opinion of Shearman & Sterling, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent, duly executed, and each such document shall be in full force and effect:
(i) a Notice of Borrowing,
(ii) the Disbursement Letter,
(iii) promissory notes evidencing all Commitments and Loans of the Lenders, as of the Restatement Effective Date;
(iv) the Master Reaffirmation Agreement,
(v) Trademark Security Agreement; and
(vi) with respect to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Restatement Effective Date:
(A) a modification to the existing Mortgage, in recordable form;
(B) the commitment of the title company to issue an endorsement to the existing title policy ensuring the continued priority of the existing Mortgage;
(C) evidence as to whether any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and otherwise sufficient to comply with all applicable rules and regulations relating to flood insurance, in form and substance reasonably acceptable to the Agent; and
(D) a legal opinion with respect to the existing Mortgage and the documents referred to in Section 3.1(b)(vi) above, delivered by Borrower’s or such Subsidiary’s counsel in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania;
(c) Agent shall have received a certificate from the Secretary of Borrower and each other Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of Borrower’s, each other Loan Party’s and each of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented to the Restatement Effective Date, certified by the Secretary of such Person;
(e) Agent shall have received a certificate of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate the such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Person) in which such Person’s failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Person is in good standing in such jurisdictions;
(g) subject to Section 3.2(b), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Agent;
(h) Agent shall have received an opinion of Borrower’s counsel in form and substance reasonably satisfactory to Agent;
(i) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including (a) Real Property taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(j) Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and invoiced at least 2 Business Days prior to the Restatement Effective Date and (b) all fees due and payable on the Restatement Effective Date pursuant to the Fee Letter;
(k) Agent shall have received a certificate from the Chief Financial Officer of the Borrower to the effect that the Loan Parties on a consolidated basis are Solvent, immediately after giving effect to this Agreement and the transactions to be consummated on the Restatement Effective Date;
(l) Agent shall have received a Beneficial Ownership Certification in relation to any Loan Party, or Subsidiary thereof, requested by the Agent or any Lender at least 2 Business Days prior to the Restatement Effective Date; and
(m) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby.
Appears in 1 contract
Sources: Credit Agreement (Accuride Corp)