First Credit Event. On the Closing Date: (a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) O'Melveny & ▇▇▇▇▇ LLP, special counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions. (c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date. (d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below: (i) a copy of the certificate or articles of incorporation or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or 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 or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses). (e) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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. (f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent. (g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million. (h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents. (i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans. (j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents. (k) The Lenders shall have received the financial statements referred to in Section 3.05. (l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01. (m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date. (n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof. (o) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangers. (p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement. (q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans). (r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from (i) each party hereto either (ia) a counterpart of this Agreement signed on behalf of such party or (iib) 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, (ii) Borrower duly executed Notes payable to the order of each Lender in a principal amount equal to its Revolving Facility Commitment dated as of the Closing Date, and (iii) each party thereto duly executed counterparts (in such number as may be requested by the Administrative Agent) of the Guaranty Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) O'Melveny ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPL.L.P., special U.S. counsel for the BorrowerLoan Parties, Van ▇▇▇▇▇▇ ▇▇▇▇, special Dutch counsel for Frank’s International C.V. and Oilfield Equipment Rental B.V., and Orion Law, special British Virgin Islands counsel for Frank’s International West Africa (BVI) Limited and Frank’s International (BVI) Limited, each in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower each Loan Party hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) belowfollowing:
(i) a copy of the certificate or articles of incorporation 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 case of a company organized under the laws of the Netherlands, issued as a true copy by the relevant civil-law notary, with an excerpt from the trade register in the Netherlands, (B) in the case of a any other corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (BC) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary Secretary, or the general partner, managing member or sole member, of each such Loan Party;; and
(ii) a certificate of the Secretary or Secretary, Assistant Secretary Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party Party, in each case dated the Closing Date and certifying:
(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) body of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of 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 incorporation, partnership agreement or limited liability agreement of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(e) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(gd) The Administrative Agent shall have received satisfactory evidence a certificate from a Responsible Officer of the Borrower certifying that the fees Borrower has received all governmental and expenses third party consents, licenses, and approvals necessary for the consummation of the Transactions, all of which shall be in form and substance satisfactory to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 millionAdministrative Agent (or a statement that no such governmental or third party consents, licenses or approvals are required).
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(ke) The Lenders shall have received the financial statements referred to in Section 3.05.
(lf) On the Closing Date, after After giving effect to the Transactions and the other transactions contemplated herebyTransactions, the Borrower and its Subsidiaries no Loan Party shall have any outstanding no preferred equity or Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, Agreement and (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mg) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at by the Borrower's option, the Chief Financial chief financial officer or another Responsible Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its the Borrower’s Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing DateTransactions.
(nh) All material governmental and third party approvals There shall not have occurred since December 31, 2012, any event or condition that are conditions has had or would reasonably be expected, either individually or in the aggregate, to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereofa Material Adverse Effect.
(oi) The Agents Administrative Agent shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(rj) The Administrative Agent shall have received a certificate signed by a Financial Responsible Officer of the Borrower as to the matters set forth in clauses (f) and (h) of this Section 4.02.
(k) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower and other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act.
(l) The Administrative Agent shall have received evidence of insurance naming the Administrative Agent as additional insured with customary endorsements on Borrower’s liability insurance.
(m) The Administrative Agent and each Lender shall have completed their due diligence to their satisfaction.
(n) The Administrative Agent shall have received evidence (i) that contemporaneously with the this Agreement becoming effective, together with satisfactory supporting schedulesFrank’s International N.V. has closed its initial public offering, certifying (ii) that FINV has contributed to Borrower all of FINV’s non-U.S. Subsidiaries and ▇▇▇▇▇▇ Holdings, Inc. has contributed all of its U.S. Subsidiaries to Frank’s International C.V. (excluding certain de minimis Subsidiaries) and Frank’s International C.V. has issued 100% of its general partnership interest to the pro forma Debt to Adjusted EBITDA Ratio Borrower as more fully described in FINV’s Registration Statement on Form S-1, as amended, and (iii) all of Borrower’s Indebtedness described in clauses (a) and (b) of the Closing Date (after giving effect definition of “Indebtedness” has been repaid in full. The Administrative Agent is hereby authorized and directed to declare this Agreement effective when the conditions set forth in Section 4.02 have been satisfied to the Transactions) for reasonable satisfaction of the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00Administrative Agent or waived as permitted herein. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) Such declaration shall be delivered after final, conclusive and binding upon the Closing Date in accordance with Section 5.10Administrative Agent, the Borrower and the Lenders for all purposes.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Frank's International N.V.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) This Agreement shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to been duly executed and delivered by the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementBorrower.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (i) O'Melveny an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special as counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent Loan Parties and (ii) local U.S. and/or foreign ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as Missouri counsel reasonably satisfactory to for the Administrative Agent as specified on Schedule 4.02(b)Loan Parties, in each case (A) dated the Closing Date, (B) Date and addressed to each Issuing Bank, the Administrative Agent and the Lenders and (C) Lenders, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinionsAgent.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation or limited liability agreementorganization, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionwhere relevant) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
Governmental Authority and (ii) a certificate of the Secretary or Secretary, Assistant Secretary or similar other senior officer of each Loan Party dated the Closing Date and certifying
certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company company) agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause Date, (B) below,
(B1) that attached thereto is a true and complete copy of resolutions or written consent duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of the Borrower, the borrowings hereunder, and (2) that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
effect, (C) that (except in connection with the Transactions) the certificate or articles of incorporation or limited liability agreement organization of such Loan Party have not been amended since the date of the last amendment thereto disclosed shown on the certificate or articles of incorporation or organization furnished pursuant to clause (i) above,
above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Secretary, Assistant Secretary or similar other senior officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together certifying compliance with the conditions precedent set forth in Sections 4.01(b) and (c), as applicable. 108
(e) The Administrative Agent shall have received (i) to the extent invoiced at least 3 Business Days prior to the Closing Date, reimbursement or payment of all attachments contemplated thereby, out-of-pocket expenses required to be reimbursed or paid by the Borrower and (ii) all fees required to be paid by the results of a search Borrower (which may be netted from the proceeds of the Uniform Commercial Code (Loans borrowed on the Closing Date), in each case, hereunder, under the Engagement Letter, under the Agency Fee Letter or equivalent) filings made with respect to the under any other 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 releasedDocument.
(f) The elements of the Acquisition contemplated Security Documents required to be consummated executed and delivered on the Closing Date shall have been consummated or duly executed and delivered by each Loan Party that is to be a party thereto and shall be consummated simultaneously with or immediately following in full force and effect, together with:
(i) certificates and instruments representing the closing Pledged Collateral (as defined in the Security Documents) referred to therein accompanied by undated stock powers executed in blank in the case of Capital Stock and instruments endorsed in blank in the case of indebtedness,
(ii) proper financing statements in form appropriate for filing under this Agreement in accordance with applicable law in all material respects and the terms and conditions UCC of the Acquisition as set forth respective jurisdiction of organization of each Loan Party covering the Collateral described in the Transaction Security Documents, none of which Transaction Documents shall have been waivedand
(iii) an Intellectual Property Security Agreement for each United States copyright, amendedpatent and trademark registration and application that is owned by, supplemented or otherwise modified in any material respect without approval of the Administrative Agentand each United States copyright that is exclusively licensed to, a Loan Party and constitutes Collateral, duly executed by each applicable Loan Party.
(g) [Reserved].
(h) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through a certificate, dated the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions signed by a Financial Officer of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing DateBorrower, after giving effect to the Transactions and the other transactions contemplated hereby, certifying that the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this AgreementRestricted Subsidiaries, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on Transactions, are Solvent as of the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(oi) The Agents Lenders shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to from the Loan Documents on or Parties at least three (3) Business Days prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses documentation and other information reasonably requested in writing no later than ten (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel10) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangers.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately Business Days prior to the Closing Date for which financial statements are available is not greater than 4.00 Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation.
(j) [Reserved]. For purposes of determining whether the conditions specified in this Section 4.02 have been satisfied on the Closing Date, by funding the Loans hereunder or issuing a Letter of Credit on the Closing Date, the Administrative Agent, each Lender and each Issuing Bank, as applicable, shall be deemed to 1.00. Notwithstanding anything herein have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the contraryAdministrative Agent, it is understood and agreed that such Lender or such Issuing Bank, as the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10case may be.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Energizer Holdings, Inc.)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (ia) a counterpart of this Agreement signed on behalf of such party or (iib) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) O'Melveny ▇▇▇▇▇▇▇ Thacher & ▇▇▇▇▇▇▇▇ LLP, special counsel for the BorrowerLoan Parties and Crestwood Equity Partners and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, each in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, Date and (B) addressed to each Issuing Bank, the Administrative Agent, the Collateral Agent and the Lenders and (C) Lenders, in form and substance reasonably satisfactory to each case as of the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably requestClosing Date, and the Borrower each Loan Party and Crestwood Equity Partners hereby instructs its instruct their counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party and Crestwood Equity Partners each of the items referred to in clauses (i), (ii), (iii) and (iv) belowfollowing:
(i) a copy of the certificate or articles of incorporation incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan PartyParty and Crestwood Equity Partners, (A) in the case of the formation documents of a corporationregistered entity, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party and Crestwood Equity Partners as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited liability companyother constitutional documents, certified by the Secretary Secretary, Assistant Secretary, other senior officer, or Assistant Secretary the general partner, managing member or sole member, of each such Loan Party;Party and Crestwood Equity Partners; and
(ii) a certificate of the Secretary Secretary, Assistant Secretary, Director, President or Assistant Secretary other senior officer or similar officer the general partner, managing member or sole member, of each Loan Party and Crestwood Equity Partners, in each case dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan Party and Crestwood Equity Partners as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowDate,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party and Crestwood Equity Partners (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and the Parent Guarantee, as applicable and, in the case of 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 or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document Document, the Parent Guarantee or any other document delivered in connection herewith on behalf of such Loan Party and Crestwood Equity Partners, as applicable, and
(ED) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party and Crestwood Equity Partners or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency Party and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses)Crestwood Equity Partners.
(ed) The elements of Subject to any items on Schedule 5.14, the Collateral and Guarantee Requirement required with respect to items to be satisfied on 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, and including the results of a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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.
(fe) The elements of the Acquisition contemplated to be consummated on the Closing Date Merger shall have been consummated or shall be consummated simultaneously substantially contemporaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative AgentAgreement.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mf) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief by a Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing DateTransactions.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(og) 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 (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersParent Guarantee.
(ph) (x) The Administrative Agent representations and warranties set forth in the Loan Documents and in the Parent Guarantee shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and except to the extent such representations and warranties are expressly qualified by materiality (in which case such representations and warranties shall be true and correct in all respects as of the applicable date) and (y) no Default or Event of Default shall have received insurance certificates satisfying occurred and be continuing on and as of the requirements of Section 5.02 of this AgreementClosing Date.
(qi) The Borrower Substantially concurrently with or prior to the consummation of the Merger, the Existing CEQP Credit Agreement shall have at least $100.0 million been repaid in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans full and Second Lien Term Loans)all commitments related thereto shall have been terminated, and all liens or other security interests relating thereto shall have been terminated or released.
(rj) The Administrative Agent shall have received a certificate signed by a Financial Responsible Officer of the BorrowerBorrower as to the matters set forth in clauses (e), together (h) and (i) of this Section 4.02.
(k) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with satisfactory supporting schedulesrespect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, certifying including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the pro forma Debt to Adjusted EBITDA Ratio as Administrative Agent at least 10 days in advance of the Closing Date Date.
(after giving effect l) The Administrative Agent shall have received flood hazard determinations and evidence of flood insurance, to the Transactionsextent required by Section 5.02(c).
(m) for The Administrative Agent shall have received the four fiscal quarters ending financial statements referenced in Sections 3.05(a), (b) and (c) (it being understood the filing of any such financial statements with the most recent fiscal quarter ended immediately prior SEC or in any public proxy statement shall satisfy the respective delivery requirements in this condition).
(n) The Administrative Agent (or its counsel) shall have received from Crestwood Equity Partners either (a) a counterpart of the Parent Guarantee signed on behalf of Crestwood Equity Partners or (b) written evidence satisfactory to the Closing Date for Administrative Agent (which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of the contrary, it is understood and agreed Parent Guarantee) that Crestwood Equity Partners has signed a counterpart of the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10Parent Guarantee.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each the Issuing Bank on the Closing DateBank, a favorable written opinion of (i) O'Melveny ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the BorrowerLoan Parties, in the form attached as Exhibit G, and (ii) each local counsel listed on Schedule 4.2(a) (except the opinion of De Brauw Blackstone Westbroek, which opinion shall be delivered no later than October 12, 2005 (or such later date not beyond November 10, 2005 as the Administrative Agent may agree in its sole discretion)), in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b)Agent, in each case (A) dated the Closing Date, (B) addressed to each the Issuing Bank, the Administrative Agent Agent, the Lenders and the Lenders other Secured Parties and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent or the Syndication Agent shall reasonably request, and the Borrower hereby instructs its requests such counsel to deliver such opinions.
(cb) All legal matters incident to this Agreement, the borrowings Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders, the Issuing Bank and the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(dc) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation or limited liability agreementincorporation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
State; (ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
certifying (A) that attached thereto is a true and complete copy of the by-laws (or 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,
effect, (C) that the certificate or articles of incorporation or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed shown on the certificate of good standing furnished pursuant to clause (i) above,
above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
and (iv) such other documents as the Administrative AgentLenders, the Lenders and any Issuing Bank on or the Closing Date Administrative Agent may reasonably request (including without limitation, tax identification numbers and addresses)request.
(ed) The elements of the Collateral Agents and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent Lenders shall have received a completed Perfection Certificate certificate, dated the Closing Date and signed by a Responsible Financial Officer of the Borrower, together confirming compliance with all attachments contemplated thereby, the conditions precedent set forth in paragraphs (b) and (c) of Section 4.1 and the results of a search of Borrower shall be in full compliance with the Uniform Commercial Code (or equivalent) 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 releasedCommitment Letter.
(fe) The elements UBS Loan Finance LLC, Banc of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects America Securities LLC and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(o) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all Fees and 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 Borrower hereunder or under any other Loan Document (including reasonable feesincluding, charges and disbursements of ▇▇▇▇▇▇▇ ▇without limitation, direct payment to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP LLP, counsel to the Agents and U.S. the Arrangers, of its fees and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or expenses payable hereunder and under the engagement letterCommitment Letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra the Fee Letter and the Joint Lead Arrangers.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Original Credit Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect , to the borrowing of the Term Loans and Second Lien Term Loansextent invoiced).
(rf) The Loan Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Administrative Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document, except to the extent otherwise provided herein or in such Security Documents.
(g) The Administrative Agent shall have received a certificate signed by duly-completed and executed Perfection Certificate (in form and substance satisfactory to the Administrative Agent) with respect to the Loan Parties, and shall have received the results of a Financial Officer search of the BorrowerUniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such persons, in which the chief executive office of each such person is located and in the other jurisdictions in which such persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory supporting schedulesto the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.2 or have been or will be contemporaneously released or terminated.
(i) Amendments to each of the Mortgages and assignments of each of the Mortgages by the Original Administrative Agent to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Administrative Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.2, (iii) each of such amendments and assignments relating to the Mortgages shall have been delivered to a nationally recognized title insurance company in reasonable form for recording in the recording office as specified on Schedule 3.19(c) and (iv) the Administrative Agent and the nationally recognized title insurance company issuing the title date-down endorsements described in Section 5.9 shall have received an as-built survey of the sites of the Mortgaged Properties, dated a date satisfactory to the Administrative Agent and such insurance company by an independent professional licensed land surveyor satisfactory to the Administrative Agent and such insurance company (it being understood that delivery of the as-built surveys delivered in connection with the Original Credit Agreement, together with the title company’s omission of a survey exception from the Administrative Agent’s date-down title endorsements, shall satisfy the requirements of this clause (iv)).
(i) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.2 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Secured Parties as additional insureds, in form and substance satisfactory to the Administrative Agent.
(j) [Intentionally Omitted].
(k) The Lenders shall have received the financial statements and opinion referred to in Section 3.5 and the unaudited consolidated balance sheets and related statements of operations, stockholders’ equity and cash flows of the Borrower and its consolidated subsidiaries as of the fiscal months ending July 31, 2005 and August 31, 2005.
(l) All requisite Governmental Authorities shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to prevent or impose materially burdensome conditions on the Transactions or the other transactions contemplated hereby. All requisite third-party consents necessary for the consummation of the Transactions shall have been obtained except for those third-party consents where the failure to so obtain such consents would not have a Material Adverse Effect.
(m) The Lenders shall have received a certificate of the chief financial officer of the Borrower certifying that the pro forma Debt to Adjusted EBITDA Leverage Ratio as at August 31, 2005 for the 12-month period then ending is not greater than 3.75 to 1.00 and containing all information and calculations necessary for determining such ratio.
(n) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Closing Date (Borrower documenting the solvency of the Borrower and its Subsidiaries after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior , in form and substance reasonably satisfactory to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Knoll Inc)
First Credit Event. On the Closing Date:
(a) The This Agreement and each other Loan Document required herein to be entered into on or prior to the Closing Date shall be in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent, each Joint Lead Arranger and each Lender (it being agreed that by executing and delivering a counterpart of this Agreement, each such Person is confirming that this Agreement, and the form of each Loan Document attached as an exhibit hereto, is reasonably satisfactory to it, subject to any amendment or other modification thereto effected pursuant to Section 9.08) and shall have been duly executed by the parties thereto and the Administrative Agent (or its counsel) shall have received from each party hereto thereto either (ia) a counterpart of this Agreement and each other Loan Document signed on behalf of such party or (iib) 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 AgreementAgreement and each other Loan Document) that such party has signed a counterpart of this AgreementAgreement and each other Loan Document.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) O'Melveny ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Oklahoma counsel reasonably satisfactory to for the Administrative Agent as specified on Schedule 4.02(b)Loan Parties, in each case case, (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower each Loan Party hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) belowfollowing:
(i) a copy of the certificate or articles of incorporation or limited liability agreementcertificate of formation or other relevant constitutional documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, each certified as of a recent date by the Secretary secretary of State state (or other similar official) of the jurisdiction state of its such Person’s organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary the secretary of State state (or other similar official) or (B) in of the case state of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party’s organization;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer a Responsible Officer of each Loan Party Party, to be dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement or limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Loan Party is a party and, in the case of the Borrowerif applicable, the borrowings hereunderhereunder and the granting of the Liens contemplated to be granted by each Loan Party under the Security Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Dateeffect,
(C) that the certificate or articles of incorporation incorporation, or limited liability agreement certificate of formation, as applicable, of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer officer, member or partner (as applicable) of such Person executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iiid) a certificate of another officer Responsible Officer of each Loan Party as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer Responsible Officer executing the certificate pursuant to clause (ii) above (which certificate may be included in the certificate delivered pursuant to clause (ii) above); and
(ive) such Such other customary corporate documents (or limited partnership or limited liability company equivalent) with respect to any Loan Party as the Administrative Agent, the Lenders and any Issuing Bank on Agent may reasonably request.
(f) (i) A certificate signed by a Responsible Officer of each Loan Party certifying that as of the Closing Date may reasonably request and after giving effect to the Loans requested to be made on such date the representations and warranties made by such Loan Party are true and correct in all material respects except for representations and warranties that expressly refer to an earlier date which are true and correct in all material respects as of such earlier date and (including without limitationii) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying that as of the Closing Date and after giving effect to the Loans requested to be made on such date and the application of the proceeds therefrom, tax identification numbers (A) no Default or Event of Default has occurred and addresses)is continuing or will have occurred and be continuing and (B) as to the matters set forth in clause (j) below.
(eg) The elements of the Collateral and Guarantee Requirement required with respect to items to be satisfied on 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, and including the results of tax and judgment lien searches and a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.;
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after After giving effect to the Transactions Transactions, and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, Agreement and (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mi) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at by the Borrower's option, the Chief chief financial officer or another Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and of the Borrower and its Subsidiaries on a consolidated basis basis, in each case, after giving effect to the Transactions on the Closing DateTransactions.
(nj) All material governmental and third party approvals There shall not have been, since August 12, 2011, any event or circumstance that are conditions has had, or would reasonably be expected to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agenthave, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereofa Material Adverse Effect.
(ok) 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 on or before two (2) Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ , LLP and U.S. and foreign local counselcounsel in any jurisdiction that the Administrative Agent deems relevant in respect of the transactions contemplated under this Agreement) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document Document. All such amounts will be paid with proceeds of the Loans made on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or under before the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersClosing Date.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(rl) The Administrative Agent shall have received a certificate signed by a Financial Responsible Officer of the Borrower as to the matters set forth in clauses (g), (f) and (v) of this Section 4.02.
(m) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions, and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain or prevent the Transactions and copies of all such approvals shall have been delivered to the Lenders.
(n) At least five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received from the Borrower a financial model which includes the income statements, balance sheets and cash flow statements for each business segment and business unit consolidating to the Borrower and its Subsidiaries, to the Restricted Subsidiaries and to the Unrestricted Subsidiaries, in each case, containing projections of revenue, expenses and cash flows over a period ending no earlier than the Maturity Date, which shall be in form and substance satisfactory to the Lenders. The model shall also include the calculation of EBITDA, the Interest Coverage Ratio and the Leverage Ratio through the projection period.
(o) The Administrative Agent shall have received as of the Closing Date (i) audited annual combined financial statements of the Borrower’s predecessor for the last fiscal year, together with satisfactory supporting schedules(ii) unaudited combined financial statements of the Borrower’s predecessor for the six-month period ending June 30, certifying that 2011 and (iii) unaudited combined financial statements of the Borrower’s predecessor for the nine-month period ended September 30, 2011, if available. The Administrative Agent shall have received correct and complete copies of the pro forma Debt to Adjusted EBITDA Ratio combined balance sheet of the Borrower and its Subsidiaries as of the end of the most recent fiscal quarter for which complete financial statements are available, prepared after giving effect to the transactions contemplated hereby and by the other Loan Documents to occur on the Closing Date.
(p) Each Lender shall have received at least five (5) Business Days prior to the Closing Date all documentation and other written information requested by the Administrative Agent and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. PATRIOT Act.
(q) Except with respect to Mortgaged Property, the Collateral Agent shall have been granted on the Closing Date, for the benefit of the Secured Parties, first priority perfected Liens on the Collateral (subject only to Permitted Liens). The Pledged Collateral shall have been duly and validly pledged under the Collateral Agreement to the Collateral Agent, for the benefit of the Secured Parties, and certificates representing the Pledged Collateral, accompanied by instruments of transfer indorsed in blank, shall be in the actual possession of the Collateral Agent.
(r) The Collateral Agent shall have received (A) appropriately completed UCC financing statements (Form UCC l), naming the applicable Loan Parties as debtors and the Collateral Agent as secured party, in form appropriate for filing as may be necessary to perfect the security interests purported to be created by the Security Documents, covering the applicable Collateral, (B) appropriately completed copies of all other recordings and filings of, or with respect to, the Security Documents as may be necessary to perfect the security interests purported to be created by the Security Documents to the extent that the corresponding Collateral and Guarantee Requirement is required to be complied with on the Closing Date, and (C) evidence that all other actions necessary to perfect the security interests purported to be created by the Security Documents have been taken or will be taken on the Closing Date to the extent that the corresponding Collateral and Guarantee Requirement is required to be complied with on the Closing Date.
(s) Insurance complying with Section 5.02 shall be in full force and effect and the Administrative Agent shall have received a certificate from the applicable Loan Parties’ insurance broker(s), dated on or around the Closing Date and identifying underwriters, type of insurance, insurance limits and policy terms, listing the special provisions required as set forth in Section 5.02, describing the insurance obtained and stating that such insurance is in full force and effect and that all premiums then due thereon have been paid (or with such other content as is reasonably acceptable to the Administrative Agent), in form and substance reasonably satisfactory to the Administrative Agent.
(t) The Administrative Agent shall have received a copy of the Risk Management Policy.
(u) The Administrative Agent shall have received reasonably satisfactory evidence that the Borrower has available liquidity (comprised of cash or undrawn availability under the Revolving Facility that would be permitted to be drawn in compliance with the financial covenants) of at least $50.0 million at the Closing Date.
(i) An initial public offering of the common limited partnership units of the Borrower shall have been completed on or prior to March 30, 2012 and the Borrower shall have received gross proceeds thereof in an aggregate amount of not less than U.S.$125.0 million, and (ii) such common limited partnership units of the Borrower shall be listed on the New York Stock Exchange.
(w) The Administrative Agent shall have received reasonably satisfactory evidence that the Leverage Ratio on the Closing Date (after giving effect to any Borrowing on the TransactionsClosing Date) for shall not exceed 4.00 to 1.00.
(x) The Administrative Agent shall have received from the four fiscal quarters ending with the most recent fiscal quarter ended immediately Borrower at least two (2) Business Days prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to a letter identifying each of the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10Existing Letters of Credit.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) This Agreement shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to been duly executed and delivered by the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementBorrower.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (i) O'Melveny an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special as counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent Loan Parties and (ii) local U.S. and/or foreign ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as Missouri counsel reasonably satisfactory to for the Administrative Agent as specified on Schedule 4.02(b)Loan Parties, in each case (A) dated the Closing Date, (B) Date and addressed to each Issuing Bank, the Administrative Agent and the Lenders and (C) Lenders, in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinionsAgent.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation or limited liability agreementorganization, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionwhere relevant) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
Governmental Authority and (ii) a certificate of the Secretary or Secretary, Assistant Secretary or similar other senior officer of each Loan Party dated the Closing Date and certifying
certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company company) agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause Date, (B) below,
(B1) that attached thereto is a true and complete copy of resolutions or written consent duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of the Borrower, the borrowings hereunder, and (2) that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
effect, (C) that (except in connection with the Transactions) the certificate or articles of incorporation or limited liability agreement organization of such Loan Party have not been amended since the date of the last amendment thereto disclosed shown on the certificate or articles of incorporation or organization furnished pursuant to clause (i) above,
above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Secretary, Assistant Secretary or similar other senior officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together certifying compliance with the conditions precedent set forth in Sections 4.01(b) and (c), as applicable.
(e) The Administrative Agent shall have received (i) to the extent invoiced at least 3 Business Days prior to the Closing Date, reimbursement or payment of all attachments contemplated thereby, out-of-pocket expenses required to be reimbursed or paid by the Borrower and (ii) all fees required to be paid by the results of a search Borrower (which may be netted from the proceeds of the Uniform Commercial Code (Loans borrowed on the Closing Date), in each case, hereunder, under the Engagement Letter, under the Agency Fee Letter or equivalent) filings made with respect to the under any other 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 releasedDocument.
(f) The elements of the Acquisition contemplated Security Documents required to be consummated executed and delivered on the Closing Date shall have been consummated or duly executed and delivered by each Loan Party that is to be a party thereto and shall be consummated simultaneously with or immediately following in full force and effect, together with:
(i) certificates and instruments representing the closing Pledged Collateral (as defined in the Security Documents) referred to therein accompanied by undated stock powers executed in blank in the case of Capital Stock and instruments endorsed in blank in the case of indebtedness,
(ii) proper financing statements in form appropriate for filing under this Agreement in accordance with applicable law in all material respects and the terms and conditions UCC of the Acquisition as set forth respective jurisdiction of organization of each Loan Party covering the Collateral described in the Transaction Security Documents, none of which Transaction Documents shall have been waivedand
(iii) an Intellectual Property Security Agreement for each United States copyright, amendedpatent and trademark registration and application that is owned by, supplemented or otherwise modified in any material respect without approval of the Administrative Agentand each United States copyright that is exclusively licensed to, a Loan Party and constitutes Collateral, duly executed by each applicable Loan Party.
(g) [Reserved].
(h) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through a certificate, dated the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions signed by a Financial Officer of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing DateBorrower, after giving effect to the Transactions and the other transactions contemplated hereby, certifying that the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this AgreementRestricted Subsidiaries, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on Transactions, are Solvent as of the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(oi) The Agents Lenders shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to from the Loan Documents on or Parties at least three (3) Business Days prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses documentation and other information reasonably requested in writing no later than ten (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel10) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangers.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately Business Days prior to the Closing Date for which financial statements are available is not greater than 4.00 Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation.
(j) [Reserved]. For purposes of determining whether the conditions specified in this Section 4.02 have been satisfied on the Closing Date, by funding the Loans hereunder or issuing a Letter of Credit on the Closing Date, the Administrative Agent, each Lender and each Issuing Bank, as applicable, shall be deemed to 1.00. Notwithstanding anything herein have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the contraryAdministrative Agent, it is understood and agreed that such Lender or such Issuing Bank, as the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10case may be.
Appears in 1 contract
First Credit Event. On or prior to the Closing Fourth Restatement Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart executed counterparts of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to and the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementother Loan Documents duly executed by all parties thereto.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion from each of (i) O'Melveny Q▇▇▇▇▇▇ & ▇B▇▇▇▇ LLP, special counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent Loan Parties and (ii) local U.S. and/or foreign M▇▇▇▇▇, ▇▇▇▇▇ & Bockius, LLP, New York counsel reasonably satisfactory to for the Administrative Agent as specified on Schedule 4.02(b)Loan Parties, in each case case, (A) dated the Closing Fourth Restatement Effective Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders on the Fourth Restatement Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Fourth Restatement Effective Date and (iv) belowcertifying:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;),
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Fourth Restatement Effective 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 Fourth Restatement Effective Date to which such 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 Fourth Restatement Effective Date,
(C) that the certificate or articles of incorporation or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Fourth Restatement Effective Date and signed by a Responsible Officer of the BorrowerBorrowers, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released.
(f) The elements of the Acquisition contemplated to been, or will be consummated on the Closing Date shall have been consummated simultaneously or shall be consummated simultaneously substantially concurrently with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and Agreement, released (or arrangements reasonably satisfactory to the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents Administrative Agent for such release shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agentmade).
(ge) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing Merger shall have been consummated consummated, or shall will be consummated simultaneously substantially concurrently with or immediately following the closing under this Agreement initial funding of the Term B Loans on the Fourth Restatement Effective Date, in all material respects in accordance with the Transaction DocumentsMerger Agreement (as applicable), and no amendments, modifications, consents or waivers to or of the Merger Agreement or the Separation Agreement (it being understood and agreed that any purchase price adjustments or adjustments to the Exchange Ratio (as defined in the Merger Agreement), and any extension of the “End Date” under the Merger Agreement, in each case, expressly contemplated by the Separation Agreement or the Merger Agreement, each as in effect on February 15, 2021, shall not be considered an amendment, modification, consent or waiver) that are materially adverse to the Lenders (in their capacity as such) shall have been made without the consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned).
(if) The Borrower Refinancing shall have received at least $75 million of gross cash proceeds from be consummated substantially concurrently with the Second Lien initial funding under the Term B Loans.
(jg) The terms and conditions Prior to, or substantially concurrently with, the initial funding of the Second Lien Loan Documents and Term B Loans, Rexnord LLC shall have received a dividend from Land Newco, Inc., a Delaware corporation, resulting in gross cash proceeds of not less than $486,827,669 (the Intercreditor Agreement shall be reasonably satisfactory to the Agents“Dividend Payment”).
(kh) The Lenders Administrative Agent shall have received the financial statements referred to in Section 3.053.05(c).
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F C and signed by, at the Borrower's option, the Chief by a Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers Borrowers confirming the solvency of the Borrower Borrowers and its their Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Fourth Restatement Effective Date.
(nj) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof[Reserved].
(ok) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Fourth Restatement Effective Date (including pursuant to the Commitment Letter and the Fee Letter through to the Fourth Restatement Effective Date) and, to the extent invoicedinvoiced at least three Business Days prior to the Fourth Restatement Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Fourth Restatement Effective 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 D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counselLLP) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pl) Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Fourth Restatement Effective Date.
(m) The Administrative Agent shall have received insurance certificates satisfying at least (3) Business Days prior to the requirements Fourth Restatement Effective Date all documentation and other information required by Section 3.25(a) and 3.27, to the extent such information has been requested not less than ten (10) Business Days prior to the Fourth Restatement Effective Date.
(n) The Specified Representations shall be true and correct in all material respects (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be).
(o) The Administrative Agent shall have received, in the case of a Borrowing to be made on the Fourth Restatement Effective Date, a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 5.02 2.03) or, in the case of this Agreementthe issuance of a Letter of Credit to be issued on the Fourth Restatement Effective Date, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit as required by Section 2.05(b).
(p) To the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall have delivered, at least three Business Days prior to the Fourth Restatement Effective Date, to each Lender that so requests at least 10 Business Days prior to the Fourth Restatement Effective Date, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
(q) The Borrower Borrowers shall have at least $100.0 million in cash available at the Closing Date (after giving effect delivered to the borrowing Administrative Agent a certificate dated as of the Term Loans Fourth Restatement Effective Date signed by a Responsible Officer of the Borrowers, to the effect set forth in Section 4.02(e), 4.02(f), 4.02(g), 4.02(l) and Second Lien Term Loans).
(r4.02(n) The 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 a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately notice from such Lender prior to the Closing Fourth Restatement Effective Date for which financial statements are specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that Administrative Agent such Lender’s ratable portion of the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10initial Borrowing.
Appears in 1 contract
Sources: First Lien Credit Agreement (Zurn Water Solutions 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 Holdings, the Borrower, the Issuing Bank and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission 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 Lenders and each Issuing Bank on the Closing DateBank, a favorable written opinion of (i) O'Melveny ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, and Posinelli P.C., each as special counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b)Loan Parties, in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative 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 and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in a certificate of the case Secretary or Assistant Secretary or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) belowcertifying:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;),
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions (or equivalent documentation) duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions (or equivalent documentation) have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or articles of incorporation or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released.
(f) The elements of the Acquisition contemplated to been, or will be consummated on the Closing Date shall have been consummated simultaneously or shall be consummated simultaneously substantially concurrently with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and Agreement, released (or arrangements reasonably satisfactory to the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents Administrative Agent for such release shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agentmade).
(ge) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(lf) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower and its or any of the Subsidiaries shall have outstanding no 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), (ii) the Second Lien Term Loans Existing Senior Unsecured Notes, (iii) any then existing Capitalized Lease Obligations, (iv) other Indebtedness incurred in the ordinary course of business of the Borrower and its Subsidiaries, including intercompany Indebtedness of the Borrower and Indebtedness for capital expenditures and working capital purposes and (iiiv) other Indebtedness permitted pursuant to under Section 6.016.01 or approved by the Arrangers in their reasonable discretion.
(mg) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F C and signed by, at the Borrower's option, the Chief by a Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(oh) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counselLLP) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document on or under prior to the engagement letter, dated as Closing Date (which amounts may be offset against the proceeds of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersLoans).
(pi) Except as set forth in Schedule 5.12 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date.
(j) The Administrative Agent shall have received insurance certificates satisfying all documentation and other information required by Section 3.25(a), to the requirements of Section 5.02 of this Agreementextent such information has been requested not less than ten (10) Business Days prior to the Closing Date.
(qk) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect delivered to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio dated as of the Closing Date (after giving effect Date, to the Transactions) effect set forth in Section 4.01(b). For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the four fiscal quarters ending with transactions contemplated by the most recent fiscal quarter ended immediately Loan Documents shall have received notice from such Lender prior to the Closing Date for which financial statements are specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available is not greater than 4.00 to 1.00the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything herein to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable (including those referred to in Sections 4.02(d) and agreed (k)) related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or possession of the stock certificates (if any) of the Borrower or any Material Subsidiary that is a Domestic Subsidiary (to the documents and other items set forth extent, with respect to such Subsidiaries, such stock certificates are received from the Company on Schedule 5.10(hor prior to the Closing Date)) 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 5.105.12.
Appears in 1 contract
Sources: First Lien Credit Agreement (Cec Entertainment Inc)
First Credit Event. On Each Lender shall make the Credit Extension to be made by it on the Closing DateDate subject only to the following conditions precedent, unless otherwise waived by the Administrative Agent and the Joint Lead Arrangers:
(a) The Administrative Agent (or its counsel) This Agreement shall have received from been duly executed and delivered by the Borrower and each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementGuarantor.
(b) The Administrative Agent and, if applicable, the relevant L/C Issuer or the relevant Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(c) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing DateL/C Issuer, a favorable written an opinion of (i) O'Melveny Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the BorrowerLoan Parties, and (ii) from each local counsel for the Loan Parties listed on Schedule 4.02(c), in each case, dated the Closing Date and addressed to each L/C Issuer, the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), customary for senior secured credit facilities in each case (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to transactions of this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Datekind.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:received
(i) a copy of the certificate or articles of incorporation or limited liability agreementorganization, including all amendments thereto, of each Loan Party, (A) in the case of a corporationcertified, certified if applicable, as of a recent date by the Secretary of State (or other similar official) Governmental Authority of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionwhere relevant) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;Governmental Authority and
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company company) agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowDate,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Dateeffect,
(C) that the certificate or articles of incorporation or limited liability agreement organization of such Loan Party have not been amended since the date of the last amendment thereto disclosed shown on the certificate of good standing furnished pursuant to clause (i) above,, and
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ei) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search (x) searches of the Uniform Commercial Code filings (or equivalentequivalent filings) filings and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions contemplated by of formation of such Person and with respect to such other locations and names listed on the Perfection Certificate and Certificate, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory (ii) the Security Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates, if any, representing the Pledged Equity (as defined in the Security Agreement) of the Borrower and the Domestic Subsidiaries accompanied by undated stock powers executed in blank and (y) subject to Section 6.13, documents and instruments to be recorded or filed that the Administrative Agent that may deem reasonably necessary to satisfy the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been releasedCollateral and Guarantee Requirement.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent[Reserved].
(g) [Reserved].
(h) The Administrative Agent shall have received satisfactory evidence that the fees a certificate in form and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be substance reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On Arrangers, dated the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F Date and signed by, at the Borrower's option, by the Chief Financial Officer of Holdings and the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of Borrower, certifying that Holdings, the Borrower and its Subsidiaries their Subsidiaries, on a consolidated basis after giving effect to the Transactions on the Closing Date, are Solvent as of the Closing Date.
(ni) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(o) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to On the Closing Date, includingthe representations and warranties made by the Loan Parties in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects).
(j) [Reserved].
(k) Since December 31, 2018, there shall not have occurred a Material Adverse Effect or any changes, events, circumstances, occurrences, effects or developments that would reasonably be likely to have, individually or in the extent invoicedaggregate, reimbursement or payment of all a Material Adverse Effect.
(l) All fees required to be paid on the Closing Date and reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed paid on the Closing Date shall have been paid.
(m) Immediately following the Transactions, neither Holdings nor any of its subsidiaries will have any Indebtedness for borrowed money other than (i) the Obligations, (ii) Indebtedness permitted under Section 7.03(b) and (iii) preferred stock of Holdings which must be treated as equity for rating agency and GAAP purposes and otherwise on terms reasonably satisfactory to the Arrangers. The Administrative Agent shall have received reasonably satisfactory evidence of repayment (or paid in the case of the Existing Second Lien Notes, satisfaction and discharge upon irrevocable deposit into escrow of sufficient proceeds from the Term Loans funded on the Closing Date) of all Indebtedness (including all Indebtedness under the Existing Credit Agreement, Existing Second Lien Notes and the Existing Third Lien Credit Agreement) to be repaid on the Closing Date and the discharge (or the making of arrangements for discharge) of all Liens other than Liens permitted pursuant to Section 7.01.
(n) [Reserved].
(o) The Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Loan Parties hereunderAdministrative Agent or the Lenders under applicable “know your customer” and Anti-Terrorism Laws, under including without limitation the USA PATRIOT Act; provided that the Administrative Agent and the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 3 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law. At least 5 Business Days prior to the Closing Date, any Loan Document or Party that qualifies as a “legal entity customer” under the engagement letterBeneficial Ownership Regulation shall have delivered, dated as of January 27to each Lender that so requests, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangersa Beneficial Ownership Certification in relation to such Loan Party.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this AgreementAudited Financial Statements.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and Collateral Agent, each Issuing Bank on and the Closing DateLenders, a favorable written opinion opinions of (i) O'Melveny O’Melveny & ▇▇▇▇▇ LLP, special transaction counsel for the BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), (iii) Callenders & Co., special Bahamas maritime counsel for the Loan Parties, (iv) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda maritime counsel for the Loan Parties, and (v) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special maritime counsel for the Loan Parties (which opinion shall be limited to covering the preferred status of the Vessel Mortgages as foreign mortgages pursuant to Title ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Section 31301(6)(B)), in each case (Ax) dated the Closing Date, (By) addressed to the Administrative Agent, the Collateral Agent, each Issuing Bank, Bank on the Administrative Agent Closing Date and the Lenders and (Cz) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii), (iv) and (ivv) below:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, thereto of each Loan Party, (Ax) if available from an official in the case of a corporationsuch jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (By) if not available from an official in the case of a limited liability companysuch jurisdiction, (A) certified by the Secretary or Assistant Secretary of each such Loan PartyParty or other person duly authorized by the constituent documents of such Loan Party or (B) otherwise in form and substance reasonably satisfactory to the Administrative Agent; provided that with respect to Radisson France the Administrative Agent also shall have received
(i) an original k-bis extract (extrait k-bis) dated not more than one month old before the Closing Date, (ii) if necessary, a copy of any power of attorney, (iii) a non-bankruptcy certificate (recherche négative de procédure collective) dated not more than one month old before the Closing Date and (iv) an état des inscriptions et privilèges dated not more than one month old before the Closing Date;
(ii) with respect to Radisson France, an executed copy of the TEG Letter;
(iii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of 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 incorporation, certificate of limited partnership or limited liability agreement certificate of formation or other equivalent constituent and governing documents of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iiiiv) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (iiiii) above;
(v) with respect to Radisson France the capital of which is intended to be pledged pursuant to a Subsidiary Borrower Pledge Agreement, a certified copy of the minutes of the general meeting of shareholders approving the Secured Parties as at the Closing Date as shareholders of Radisson France in the event of the enforcement of the Subsidiary Borrower Pledge Agreement; and
(ivvi) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied to the reasonable satisfaction of the Administrative Agent, and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) Lien filings made with respect to each Borrower in Washington, D.C., the Loan Parties jurisdiction in which such Borrower is formed and existing and any other jurisdiction in which the jurisdictions contemplated by the Perfection Certificate and Collateral Agent determines it would be advisable to conduct such a search, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been releasedreleased and terminated; provided that, to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a Uniform Commercial Code financing statement or similar Lien filing in any other relevant jurisdiction, the registration of a Vessel Mortgage in the appropriate ship registry, the recordation, registration or filing of other Security Documents (or notice thereof) with the appropriate Governmental Authority or the delivery of stock certificates or other instruments representing Equity Interests and the security agreement giving rise to the security interest therein) is not able to be provided on the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so, such requirements may be satisfied after the Closing Date in accordance with Section 5.10(a).
(e) The Acquisition shall have been consummated in accordance with the Acquisition Documents, without giving effect to any waiver or other modification thereof that is materially adverse to the interests of the Lenders not approved in writing by the Administrative Agent, and the Administrative Agent shall have received a copy of each consent, authorization, acknowledgement, approval or similar item from or issued by any Governmental Authority required under the Acquisition Documents.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date Second Lien Loan Documents shall have been consummated (or shall be consummated substantially simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth shall) become effective in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of form approved by the Administrative Agent, and the Borrowers shall have received gross cash proceeds of not less than $175,000,000 from the incurrence of the Second Lien Obligations.
(g) The Since December 31, 2006, no Material Adverse Effect shall have occurred.
(i) All amounts due or outstanding in respect of the Existing Credit Agreements and all other indebtedness of any Loan Party or Subsidiary (other than Indebtedness set forth on Schedule 6.01) shall have been (or substantially simultaneously with the closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof and security therefor discharged, released and terminated, and (ii) the Voyager Bareboat Charter Arrangement shall have been (or substantially simultaneously with the closing under this Agreement shall be) terminated, and Supplystill shall have acquired all right, title and interest in the SEVEN SEAS VOYAGER and the SEVEN SEAS VOYAGER shall have been duly registered under Bahamian law in the name of Supplystill as owner thereof, and, in the case of each of clauses (i) and (ii), the Administrative Agent shall have received reasonably satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documentsthereof.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements and interim financial reports referred to in Section 3.05.
(lj) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, CCH, the Borrower Subsidiary Borrowers and its the Material Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans Obligations and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mk) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F C and signed by, at the Borrower's option, the Chief by a Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers CCH confirming the solvency of the (i) each Borrower individually and (ii) CCH and its Subsidiaries on a consolidated basis basis, in each case, after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(ol) The Agents shall have received all fees payable thereto or to any Arranger or Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counselChance US LLP) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or Document.
(m) The Administrative Agent and/or Collateral Agent (as appropriate) shall have received insurance certificates, copies of cover notes and certificates of entry, together with brokers’ letters of undertaking in respect thereof, in each case satisfying the requirements of Section 5.02 (including any such items also covered in clause (iv) of paragraph (r) of this Section 4.02).
(n) The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the engagement letter, dated USA PATRIOT Act.
(o) The Administrative Agent shall have received satisfactory evidence that the Process Agent shall have accepted its appointment by each Loan Party as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangersprovided in Section 10.15(c).
(p) The Administrative Agent shall have received insurance certificates satisfying a copy of the requirements CCH-Radisson France Instrument, together with a copy of Section 5.02 a report from KPMG, LLP setting forth a determination of this Agreementthe fair market value of the CCH-Radisson France Instrument using any commonly accepted valuation methodology, certified by a Responsible Officer of CCH as true and complete and in full force and effect on the Closing Date.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed copy of the Shared Services Agreement certified by a Financial Responsible Officer of CCH as true and complete and in full force and effect on the BorrowerClosing Date.
(r) The Collateral Agent shall have received:
(i) evidence that each Vessel Mortgage has been duly executed and delivered by the relevant Borrower and duly registered in accordance with the laws of Bahamas, with respect to the SEVEN SEAS MARINER and the SEVEN SEAS VOYAGER, or Bermuda, with respect to the SEVEN SEAS NAVIGATOR, and such other evidence that the Collateral Agent may deem necessary in order to create a valid first priority ship mortgage and subsisting Lien securing the Obligations on the Mortgaged Vessel described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all registration fees in connection therewith have been duly paid;
(ii) (x) in respect of each of the SEVEN SEAS MARINER and the SEVEN SEAS VOYAGER, a Transcript of Register issued by the Bahamas Maritime Authority and (y) in respect of the SEVEN SEAS NAVIGATOR, a Transcript of Register issued by the Department of Maritime Administration for Bermuda, in each case, stating that the applicable Mortgaged Vessel is owned by the applicable Borrower and that there are of record no liens or other encumbrances on such Mortgaged Vessel except the applicable Vessel Mortgage in favor of the Collateral Agent and the applicable Second Lien vessel mortgage in favor of the Second Lien Collateral Agent;
(iii) a copy of a certificate duly issued by the Classification Society, not more than five days prior to the date of the relevant Vessel Mortgage, to the effect that the relevant Mortgaged Vessel has received the highest classification and rating for vessels of the same age and type, and is free of all overdue recommendations and notations of the Classification Society;
(iv) evidence of insurance in respect of the relevant Mortgaged Vessel naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee under property and casualty coverages, and, with respect to liability coverages, evidence that the relevant protection and indemnity club has made a loss payable endorsement to such coverages as required in the relevant Security Documents, in each case with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is specified in Section 5.02 or otherwise required pursuant to the relevant Security Documents, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect a favorable opinion from an Approved Insurance Evaluator on such matters relating to the Transactions) insurance for the four fiscal quarters ending with relevant Mortgaged Vessel as the most recent fiscal quarter ended immediately prior to Administrative Agent may require and the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to letters of undertaking required by the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.relevant Security Documents;
Appears in 1 contract
Sources: Credit Agreement (Mariner, LLC)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (ia) a counterpart of this Agreement signed on behalf of such party or (iib) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission, or electronic transmission of a PDF copy, of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) O'Melveny ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the BorrowerLoan Parties and (ii) ▇▇▇▇▇ Lord Bissell & Liddell LLP, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower each Loan Party hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) belowfollowing:
(i) a copy of the certificate or articles of incorporation incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary Secretary, or the general partner, managing member or sole member, of each such Loan Party;; and
(ii) a certificate of the Secretary or Secretary, Assistant Secretary Secretary, Director, President or similar officer or the general partner, managing member or sole member, of each Loan Party Party, in each case dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of 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 incorporation, partnership agreement or limited liability agreement of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required with respect to items to be satisfied on 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, and including the results of a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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 (fincluding the creation, perfection or priority of any security interest) The elements of the Acquisition contemplated to is not or cannot be consummated 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 (and in any event within 45 days following the Closing Date (or, in the case of Closing Date Real Property, within 90 days following the Closing Date), plus any extensions granted by the Administrative Agent in its sole discretion), in each case pursuant to arrangements reasonably satisfactory to the Administrative Agent;
(e) The Transactions shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in the Merger Agreement and all other related documentation (without material respects and amendment, modification or waiver thereof which is adverse to the terms and conditions of Lenders without the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval prior consent of the Administrative Agent., which consent shall not be unreasonably withheld or delayed), including each of the following:
(gi) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing Merger shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Merger Documents; and
(ii) Each of the IGP Acquisition and the Existing CMLP GP Acquisition shall have been consummated.
(if) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after After giving effect to the Transactions Transactions, and the other transactions contemplated hereby, the Borrower and its Relevant Subsidiaries shall have no outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, Agreement and (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mg) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief by a Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing DateTransactions.
(nh) All material governmental and third party approvals Since December 31, 2012, there shall not have occurred any event or occurrence that are conditions has had or would reasonably be likely to closing have a Material Adverse Effect (as defined in the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereofMerger Agreement).
(oi) 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 (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pj) The (x) Specified Representations and (y) Specified Merger 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 insurance certificates satisfying evidence reasonably satisfactory to it that the requirements Existing Credit Facilities have been or concurrently with the Closing Date are being terminated, all Liens securing obligations under the Existing Credit Facilities have been or concurrently with the Closing Date are being released and all amounts outstanding thereunder have been (or will be with the proceeds of Section 5.02 of this Agreementthe Loans on Closing Date) paid in full.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(rl) The Administrative Agent shall have received a certificate signed by a Financial Responsible Officer of the BorrowerBorrower as to the matters set forth in clauses (e), together (f), (h) and (j) of this Section 4.02.
(m) The Closing Date shall have occurred on or prior to November 5, 2013.
(n) The Administrative Agent shall have received all documentation and other information required by regulatory authorities with satisfactory supporting schedulesrespect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, certifying including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the pro forma Debt to Adjusted EBITDA Ratio as Administrative Agent at least 10 days in advance of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10Date.
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 (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission 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 Lenders and each Issuing Bank on the Closing DateL/C Issuer, a favorable written opinion of (i) O'Melveny ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent Loan Parties and (ii) each local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing BankL/C Issuer, the Administrative 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 and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in a certificate of the case Secretary, Assistant Secretary, Responsible Officer or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) belowcertifying:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by a Responsible Officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;),
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of 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 or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Date and signed by a Responsible Officer of the Initial Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released.
(f) The elements of the Acquisition contemplated to been, or will be consummated on the Closing Date shall have been consummated simultaneously or shall be consummated simultaneously substantially concurrently with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction DocumentsAgreement, none of which Transaction Documents shall have been waived, amended, supplemented released (or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be arrangements reasonably satisfactory to the AgentsAdministrative Agent for such release shall have been made).
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(me) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F I and signed by, at the Borrower's option, the Chief by a Financial Officer of the Initial Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Initial Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(o) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangers.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.
Appears in 1 contract
Sources: Incremental Assumption Agreement (Caesars Entertainment, Inc.)
First Credit Event. On Other than as specified in Section 4.03, on the Closing Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Effective Date, a favorable written opinion of (i) O'Melveny ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the BorrowerCompany, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), may be reasonably requested by the Administrative Agent in each case (A) dated the Closing Effective Date, (B) addressed to each Issuing BankBank on the Effective Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions Transaction as the Administrative Agent shall reasonably request, and each of Holdings and the Borrower Company hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Person that is a Loan Party on the Effective Date each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation incorporation, memorandum and articles of association, partnership agreement or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing under the jurisdiction of its organization (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the manager, Secretary or Assistant Secretary or other appropriate officer of each such Loan Party;
(ii) a certificate of the manager, director, Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Effective Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of the a Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Effective Date,
(C) that the certificate or articles of incorporation incorporation, memorandum and articles of association, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iii) a certificate of another officer officer, director or attorney-in-fact as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative AgentAgent shall have reasonably requested (including, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement Requirements required to be satisfied on as of the Closing Effective Date shall have been satisfied or waived and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Effective Date and signed by a Responsible Officer of the Borrowereach Loan Party, together with all attachments contemplated thereby, and including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the each Loan Parties Party in the jurisdictions contemplated by the Perfection Certificate Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or will promptly be released.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(ke) The Lenders shall have received the financial statements referred to in Section 3.053.05(a).
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mf) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F I and signed by, at the Borrower's option, the Chief Financial by a director or a Responsible Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers Holdings confirming the solvency of the Borrower Holdings and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing DateTransaction.
(ng) All No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Transaction, and all material governmental and third party approvals that are conditions actions by or in respect of or material filings with any Governmental Authority required to closing permit the consummation of the Transaction under the Transaction Agreement shall have been obtained taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to Holdings and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agentits Subsidiaries, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereofas a whole.
(oh) The Agents Administrative Agent shall have received all fees payable thereto to it, MLPF&SI or to any other Lender on or prior to the Closing Effective Date and, to the extent invoicedinvoiced prior to the Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Effective Date, including, to the extent invoicedinvoiced prior to the Effective Date in reasonable detail, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP llp and any U.S. and local or foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pi) The Administrative Agent shall have received evidence that the insurance certificates satisfying the requirements of required by Section 5.02 of this Agreementis in effect.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) O'Melveny O’Melveny & ▇▇▇▇▇ LLP, special New York counsel for the BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or and memorandum and articles of incorporation incorporation, certificate of limited partnership or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person’s jurisdiction of incorporation) of the jurisdiction of its organization, and a certificate as to the good standing (or similar concept, to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary or similar officer of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing membermember or equivalent body) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or memorandum and articles of incorporation incorporation, certificate of limited partnership or limited liability agreement certificate of formation or other equivalent governing document of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above;
(iv) a duly executed copy of the Intercreditor Agreement; and
(ivv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC or PPSA financing statement (or the appropriate equivalent) or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (and judgment, bankruptcy, and federal and state tax Liens) (or PPSA or other equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released, or shall be released upon the funding of the Loans.
(fe) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Purchase Documents, none of without material amendment, supplement, modification or waiver thereof which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect is materially adverse to the Lenders without approval the prior written consent of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(if) The Borrower shall have received at least $75 million of gross cash proceeds of (i) $46.5 million from the Second Lien Term Loansissuance of the New Senior Notes.
(jg) The terms and conditions of the Second Lien Loan Documents New Senior Notes (including terms and conditions relating to the Intercreditor Agreement interest rate, fees, amortization, maturity, covenants, defaults and remedies) shall be as set forth in the New Senior Notes Offering Memorandum or otherwise reasonably satisfactory to the AgentsAdministrative Agent.
(kh) The Lenders shall have received the financial statements referred to in Section 3.05.
(li) On or prior to the Initial Borrowing Date and substantially concurrently with the incurrence of Loans and the use of such Loans to refinance the extensions of credit under the Existing Credit Facility Agreements on such date, all Indebtedness of Holdings and its Subsidiaries under the Existing Credit Facility Agreements shall have been repaid in full, together with all fees and other amounts owing thereon, all commitments under the Existing Credit Facility Agreements shall have been terminated and all letters of credit issued pursuant to the Existing Credit Facility Agreements (other than the Existing Letters of Credit) shall have been terminated.
(j) On the Closing Date and substantially concurrently with the incurrence of Loans on such date, all security interests in respect of, and Liens securing, the Indebtedness under the Existing Credit Facility Agreements created pursuant to the security documentation relating to the Existing Credit Facility Agreements shall have been terminated and released, and the Administrative Agent shall have received all such releases as may have been requested by the Administrative Agent, which releases shall be in form and substance satisfactory to the Administrative Agent. Without limiting the foregoing, there shall have been delivered to the Administrative Agent, if requested, (w) payoff letters, in form and substance reasonably satisfactory to the Administrative Agent, (x) proper termination statements (Form UCC-3, PPSA-2C or the appropriate equivalent) for filing under the UCC or equivalent statute or regulation of each jurisdiction where a financing statement or application for registration (Form UCC-1 or PPSA-1C or the appropriate equivalent) was filed with respect to Holdings or any of its Subsidiaries in connection with the security interests created with respect to the Existing Credit Facility Agreements, (y) terminations or reassignments of any security interest in, or Lien on, any patents, trademarks, copyrights, or similar interests of Holdings or any of its Subsidiaries on which filings have been made and (z) terminations of all mortgages, leasehold mortgages, hypothecs and deeds of trust created with respect to property of Holdings or any of its Subsidiaries, in each case, to secure the obligations under the Existing Credit Facility Agreements, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(k) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrower and its the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans Existing Senior Notes, the Existing Subordinated Notes and the New Senior Notes, and (iii) other Indebtedness permitted pursuant to Section 6.01.
(ml) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F C and signed by, at the Borrower's option, by the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of Holdings, the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(om) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counselCase LLP) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pn) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(qo) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act.
(p) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect used commercially reasonable efforts to the borrowing of the Term Loans have received a corporate credit rating by S&P and Second Lien Term Loans)a corporate family rating by ▇▇▇▇▇’▇.
(rq) The Administrative Agent shall have received a certificate signed Borrowing Base Certificate.
(r) On the Closing Date, the Loan Parties shall have delivered to the Current Asset Revolving Facility Collateral Agent (or its designee) title certificates in respect of Transportation Equipment owned by the Loan Parties having an aggregate Net Orderly Liquidation Value of at least $112.5 million.
(s) Since March 31, 2007, there has been no event, change, occurrence, condition or circumstance that, either individually or in the aggregate, has had or could reasonably be expected to have a Financial Officer material adverse effect on the business, property, assets, liabilities, operations or condition (financial or otherwise) of Holdings, the Borrower and their Subsidiaries, taken as a whole, the ability of the BorrowerLoan Parties to perform their obligations under the Loan Documents, together with satisfactory supporting schedules, certifying that or the pro forma Debt to Adjusted EBITDA Ratio as validity or enforceability of any of the Closing Date (after giving effect Loan Documents or the rights and remedies of the Current Asset Revolving Facility Administrative Agent, the Fixed Asset Revolving Facility Administrative Agent, the Current Asset Revolving Facility Collateral Agent, the Fixed Asset Revolving Facility Collateral Agent and the Lenders thereunder For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Transactions) Lenders unless an officer of the Administrative Agent responsible for the four fiscal quarters ending with transactions contemplated by the most recent fiscal quarter ended immediately Loan Documents shall have received notice from such Lender prior to the Closing Date for which financial statements are specifying its objection thereto and such Lender shall not have made available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that Administrative Agent such Lender’s ratable portion of the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) O'Melveny ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower each Loan Party hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation incorporation, partnership agreement or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership of or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of 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 incorporation, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(e) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificates dated the -83- Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and including the results of a search of the Uniform Commercial Code UCC (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date Transactions shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law the Acquisition Agreement and all other related documentation (including Annex A) (without material amendment, modification or waiver thereof which is adverse to the Lenders (as reasonably determined by the Administrative Agent) without the prior consent of the Administrative Agent), except for those transactions described in all material respects and Annex A that are specifically indicated to occur after the Closing, including each of the following:
(i) The Equity Financing shall have been consummated. The terms and conditions of the Acquisition Equity Financing shall be as set forth in the Transaction Documents, none of which Transaction Documents Equity Commitment Letters or otherwise reasonably satisfactory in all respects to the Administrative Agent.
(ii) The Borrower shall have been waivedreceived net cash proceeds from the issuance of $300.0 million of Senior Notes pursuant to the Senior Note Indenture; and
(iii) The terms and conditions of the Senior Notes (including terms and conditions relating to the interest rate, amendedfees, supplemented amortization, maturity, subordination, covenants, defaults and remedies) shall be as set forth in the Offering Memorandum or otherwise modified in any material respect without approval of reasonably satisfactory to the Administrative Agent.
(g) The Administrative Agent Lenders shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.received:
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05; and
(ii) any additional financial statements received by Acquisition Corp. on or prior to the Closing pursuant to the Acquisition Agreement, including, without limitation, any financial statements reflecting RAG Colorado as a discontinued operation.
(lh) On The Lenders shall have received a pro forma consolidated balance sheet (calculated at the most recently available balance sheet date) of Holdings and the Borrower, after giving effect to the Transactions, together with a certificate of the chief financial officer or another Responsible Officer of the Borrower to the effect that such statements accurately present the (x) pro forma financial position of the Borrower and its Subsidiaries in accordance with GAAP and (y) amount on the Closing Date, after Date of all Available Cash on Hand of the Acquired Business.
(i) After giving effect to the Transactions and the other transactions contemplated hereby, the Borrower Holdings and its their Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans Senior Notes and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mj) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F G and signed by, at by the Borrower's option, the Chief Financial chief financial officer or another Responsible Officer of each of Holdings and the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of Holdings, the Borrower and its the Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing DateTransactions.
(nk) All There has not been any Material Adverse Effect, after giving effect to the Transactions, taken as a whole, since December 31, 2003.
(l) Except as set forth in Schedule 4.02 (e), no provision of any applicable law or regulation, including, without limitation, Mining Laws, and no judgment, injunction, order or decree shall prohibit the consummation of the Transactions, and all material governmental and third party approvals that are conditions actions by or in respect of or material filings with any Governmental Authority required to closing permit the Transaction under consummation of the Transaction Agreement Transactions shall have been obtained taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not be material to the Borrower and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agentits Subsidiaries, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereofas a whole.
(om) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pn) The Administrative Agent representations and warranties set forth in Sections 3.02, 3.03, 3.04 and 3.16 hereof shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million be true and correct in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans all material respects on and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date Date.
(after giving effect o) [intentionally omitted] (p) (A) the ratio of Consolidated Debt to the Transactions) pro forma adjusted EBITDA for the trailing four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is shall not be greater than 4.00 5.00 to 1.00. Notwithstanding anything herein ; and (B) the ratio of that portion of Consolidated Debt ranking pari passu with the Senior Notes and secured by a Lien on the property or assets of Holdings and the Subsidiaries to pro forma adjusted EBITDA for the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after trailing four quarters ended immediately prior to the Closing Date shall not be greater than 2.90 to 1.00; in accordance with Section 5.10the case of each of (A) and (B), on a pro forma basis giving effect to the Transactions (other than any Closing Date Revolving Facility Borrowings).
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The This Agreement and each other Closing Date Loan Document shall be in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent, each Joint Lead Arranger and each Lender and shall have been duly executed by the parties thereto and the Administrative Agent (or its counsel) shall have received from each party hereto thereto either (ia) a counterpart of this Agreement and each other Loan Document signed on behalf of such party or (iib) 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 AgreementAgreement and each other Loan Document) that such party has signed a counterpart of this AgreementAgreement and each other Closing Date Loan Document.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) O'Melveny ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent Loan Parties and (ii) local U.S. and/or foreign ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Oklahoma counsel reasonably satisfactory to for the Administrative Agent as specified on Schedule 4.02(b)Loan Parties, in each case case, (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower each Loan Party hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) belowfollowing:
(i) a copy of the certificate or articles of incorporation or limited liability agreementcertificate of formation or other relevant constitutional documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, each certified as of a recent date by the Secretary secretary of State state (or other similar official) of the jurisdiction state of its such Person’s organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary the secretary of State state (or other similar official) or (B) in of the case state of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party’s organization;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer a Responsible Officer of each Loan Party Party, to be dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement or limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Loan Party is a party and, in the case of the Borrowerif applicable, the borrowings hereunderhereunder and the granting of the Liens contemplated to be granted by each Loan Party under the Security Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Dateeffect,
(C) that the certificate or articles of incorporation incorporation, or limited liability agreement certificate of formation, as applicable, of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer officer, member or partner (as applicable) of such Person executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iii) a certificate of another officer Responsible Officer of each Loan Party as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer Responsible Officer executing the certificate pursuant to clause (ii) above (which certificate may be included in the certificate delivered pursuant to clause (ii) above); and
(iv) such other customary corporate (or equivalent) documents with respect to any Loan Party as the Administrative AgentAgent may reasonably request.
(d) (i) A certificate signed by a Responsible Officer of each Loan Party certifying that as of the Closing Date, and immediately after giving effect to the Initial Merger and the Loans and any other extensions of credit under this Agreement requested to be made on such date, the Lenders representations and warranties made by such Loan Party are true and correct in all material respect (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) except for representations and warranties that expressly refer to an earlier date which are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date and (ii) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying that as of the Closing Date, and after giving effect to the Initial Merger and the Loans and any Issuing Bank other extensions of credit under this Agreement requested to be made on such date and the Closing Date may reasonably request (including without limitationapplication of the proceeds therefrom, tax identification numbers no Default or Event of Default has occurred and addresses)is continuing or will have occurred and be continuing.
(e) The elements of the Collateral and Guarantee Requirement required with respect to items to be satisfied on 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, and including the results of tax and judgment lien searches and a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after After giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, Agreement and (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mg) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F E and signed by, at by the Borrower's option, the Chief Financial chief financial officer or another Responsible Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and of the Borrower and its Subsidiaries on a consolidated basis basis, in each case, after giving effect to the Transactions on the Closing DateTransactions.
(nh) All material governmental and third party approvals There shall not have been, since December 31, 2015, any event or circumstance that are conditions has had, or would reasonably be expected to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agenthave, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereofa Material Adverse Effect.
(oi) 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 on or before two (2) Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counselcounsel in any jurisdiction that the Administrative Agent deems relevant in respect of the transactions contemplated under this Agreement) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document Document. All such amounts, at the election of the Borrower, will be paid with proceeds of the Loans made on the Closing Date and, to the extent such election is made, will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or under before the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersClosing Date.
(pj) The Initial Merger shall have been consummated substantially contemporaneously with the effectiveness of this Agreement on the terms and conditions set forth in the Initial Merger Agreement.
(k) The Administrative Agent shall have received insurance certificates satisfying evidence reasonably satisfactory to it that all commitments under the requirements RRMS Credit Agreement have been or concurrently with the Closing Date are being terminated, all Liens securing obligations under the Loan Documents (as defined in the RRMS Credit Agreement) have been or concurrently with the Closing Date are being released and all amounts outstanding thereunder have been (or will be with the proceeds of Section 5.02 of this Agreementthe Loans on Closing Date) paid in full.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(rl) The Administrative Agent shall have received a certificate signed by a Financial Responsible Officer of the BorrowerBorrower as to the matters set forth in clauses (e), together with (f), (h) and (j) of this Section 4.02.
(m) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions, and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain or prevent the Transactions and copies of all such approvals shall have been delivered to the Lenders.
(n) At least five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received from the Borrower a financial model, which shall be in form and substance satisfactory supporting schedulesto the Administrative Agent. The model shall include the calculation of EBITDA, certifying that the pro forma Debt to Adjusted EBITDA Interest Coverage Ratio and the Leverage Ratio through the projection period.
(o) The Administrative Agent shall have received as of the Closing Date (i) audited annual consolidated financial statements of each of the Borrower and RRMS for the last two (2) fiscal years ending at least one hundred (100) days prior to the Closing Date, (ii) for fiscal periods after the end of the last such year, unaudited consolidated quarterly financial statements of each of the Borrower and RRMS for each fiscal quarter ending at least fifty (50) days prior to the Closing Date and (iii) consolidated balance sheets of each of the Borrower and RRMS and related statements of operations for the year ended December 31, 2015 and the quarter ended March 31, 2016 and June 30, 2016. The Administrative Agent shall have received correct and complete copies of the pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 2016, prepared after giving effect to the TransactionsTransactions and the other transactions contemplated hereby and by the other Loan Documents to occur on the Closing Date (it being agreed that the condition in this sentence has been satisfied by the filing on Form S-4 by the Borrower).
(p) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately The Administrative Agent and each Lender shall have received at least five (5) Business Days prior to the Closing Date all documentation and other written information requested by the Administrative Agent and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(q) Except with respect to Mortgaged Property, the Collateral Agent shall have been granted on the Closing Date, for which financial statements are available is not greater than 4.00 the benefit of the Secured Parties, first priority perfected Liens on the Collateral (subject only to 1.00Permitted Liens). Notwithstanding anything herein The Pledged Collateral shall have been duly and validly pledged under the Collateral Agreement to the contraryCollateral Agent, it is understood for the benefit of the Secured Parties, and agreed certificates representing the Pledged Collateral, accompanied by instruments of transfer indorsed in blank, shall be in the actual possession of the Collateral Agent.
(r) The Collateral Agent shall have received (A) appropriately completed UCC financing statements (Form UCC l) (including transmitting utility filings, as appropriate), naming the applicable Loan Parties as debtors and the Collateral Agent as secured party, in form appropriate for filing as may be necessary to perfect the security interests purported to be created by the Security Documents, covering the applicable Collateral, (B) appropriately completed copies of all other recordings and filings of, or with respect to, the Security Documents as may be necessary to perfect the security interests purported to be created by the Security Documents to the extent that the documents corresponding Collateral and Guarantee Requirement is required to be complied with on the Closing Date, and (C) evidence that all other items set forth actions necessary to perfect the security interests purported to be created by the Security Documents have been taken or will be taken on Schedule 5.10(h) shall be delivered after the Closing Date in accordance to the extent that the corresponding Collateral and Guarantee Requirement is required to be complied with on the Closing Date.
(s) Insurance complying with Section 5.105.02 shall be in full force and effect and the Administrative Agent shall have received a certificate from the applicable Loan Parties’ insurance broker(s), dated on or around the Closing Date and identifying underwriters, type of insurance, insurance limits and policy terms, listing the special provisions required as set forth in Section 5.02, describing the insurance obtained and stating that such insurance is in full force and effect and that all premiums then due thereon have been paid (or with such other content as is reasonably acceptable to the Administrative Agent), in form and substance reasonably satisfactory to the Administrative Agent.
(t) The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property, which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein and (3) otherwise comply with the Flood Program; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgement of receipt of written notification from the Collateral Agent (1) as to the existence of each such Mortgaged Property, and (2) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; (D) if any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is in compliance with all applicable regulations of the Board; and (E) draft Mortgages and exhibits with respect to the Closing Date Real Property, in each case reasonably satisfactory to the Administrative Agent.
(u) The Administrative Agent shall have received a copy of the Risk Management Policy. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make additional Loans and of any Issuing Bank to issue, amend, extend or renew any Revolving Letter of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.08). Without limiting the generality of the provisions of Article IX, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent, the Joint Lead Arrangers or the Lenders unless the Administrative Agent and the Joint Lead Arrangers shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
First Credit Event. On Other than as specified in Section 4.03, on the Closing Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Effective Date, a favorable written opinion of (i) O'Melveny G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the BorrowerCompany, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), may be reasonably requested by the Administrative Agent in each case (A) dated the Closing Effective Date, (B) addressed to each Issuing BankBank on the Effective Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions Transaction as the Administrative Agent shall reasonably request, and each of Holdings and the Borrower Company hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Person that is a Loan Party on the Effective Date each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation incorporation, memorandum and articles of association, partnership agreement or limited liability agreement, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing under the jurisdiction of its organization (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the manager, Secretary or Assistant Secretary or other appropriate officer of each such Loan Party;
(ii) a certificate of the manager, director, Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Effective Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Person is a party and, in the case of the a Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Effective Date,
(C) that the certificate or articles of incorporation incorporation, memorandum and articles of association, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iii) a certificate of another officer officer, director or attorney-in-fact as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative AgentAgent shall have reasonably requested (including, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement Requirements required to be satisfied on as of the Closing Effective Date shall have been satisfied or waived and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Effective Date and signed by a Responsible Officer of the Borrowereach Loan Party, together with all attachments contemplated thereby, and including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the each Loan Parties Party in the jurisdictions contemplated by the Perfection Certificate Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or will promptly be released.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(o) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead Arrangers.
(p) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior to the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) O'Melveny O’Melveny & ▇▇▇▇▇ LLP, special counsel for the BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of 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 incorporation, certificate of limited partnership or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released.
(fe) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Purchase Documents, none of without material amendment, supplement, modification or waiver thereof which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect is materially adverse to the Lenders without approval the prior written consent of the Administrative Agent.
(gf) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Equity Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documentsconsummated.
(ig) The Borrower shall have received at least $75 million of gross cash proceeds of (i) 600.0 million from the issuance of the Second Lien Term LoansNotes and (ii) $300.0 million from the incurrence of the issuance of the Senior Subordinated Notes.
(jh) The terms and conditions of the Second Lien Loan Documents Notes and the Intercreditor Agreement Senior Subordinated Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination (in the case of the Senior Subordinated Notes), security (in the case of the Second Lien Notes), covenants, defaults and remedies) shall be as set forth in the Second Lien Notes Offering Memorandum and the Senior Subordinated Notes Offering Memorandum or otherwise reasonably satisfactory to the AgentsAdministrative Agent.
(ki) The Lenders shall have received the financial statements referred to in Section 3.05.
(lj) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrower and its the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans Notes, (iii) the Senior Subordinated Notes, and (iiiiv) other Indebtedness permitted pursuant to Section 6.01.
(mk) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F B and signed by, at the Borrower's option, by the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(ol) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel▇) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pm) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(rn) The Administrative Agent shall have received a certificate signed received, at least three Business Days prior to the Closing Date, all documentation and other information required by a Financial Officer regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the Transactions) Administrative Agent responsible for the four fiscal quarters ending with transactions contemplated by the most recent fiscal quarter ended immediately Loan Documents shall have received notice from such Lender prior to the Closing Date for which financial statements are specifying its objection thereto and such Lender shall not have made available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that Administrative Agent such Lender’s ratable portion of the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy fax transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i) O'Melveny ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New York counsel for Holdings and the BorrowerCompany, in form and substance reasonably satisfactory to (ii) ▇▇▇▇▇▇▇, special Cayman Islands counsel for the Administrative Agent and the Lenders and (iiiii) local U.S. and/or foreign White & Case LLP, special English law counsel reasonably satisfactory to for the Administrative Agent as specified on Schedule 4.02(b)and the Lenders, in each case case,
(A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative 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 and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the Borrower Company hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or of incorporation and/or the memorandum and articles of incorporation incorporation, certificate of limited partnership or limited liability agreementcertificate of formation, including all amendments thereto, of Holdings, the Company and each Subsidiary thereof prior to the consummation of the Acquisition (each, a “Closing Loan Party, (A) in the case of a corporation”), certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party);
(ii) a certificate of the Secretary secretary or Assistant Secretary assistant secretary or similar officer of each Closing Loan Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or limited partnership agreement, limited liability company agreement or other equivalent governing documents) of such Closing Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Closing 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 BorrowerCompany, 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 of incorporation and/or the memorandum and articles of incorporation incorporation, certificate of limited partnership or limited liability agreement certificate of formation of such Closing Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Closing Loan Party andParty,
(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 Closing Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents a certificate of a Responsible Officer of Holdings or the Company certifying that as of the Administrative AgentClosing Date (i) all the representations and warranties set forth in clause (b) of Section 4.01 are true and correct and (ii) no Default or Event of Default of the type set forth in clauses (b), the Lenders (c), (h) or (i) of Section 7.01 has occurred and is continuing or would result from any Issuing Bank Borrowing to occur on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses)or the application of the proceeds thereof.
(ei) The elements of the Collateral and Guarantee Requirement shall have been satisfied, to the extent required to be satisfied prior to the Credit Event occurring on the Closing Date shall have been satisfied and Date, (ii) 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, and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Closing Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and (iii) the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are either permitted by Section 6.02 or have been releasedreleased (or authorized for release in a manner satisfactory to the Administrative Agent).
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(le) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) all conditions precedent to the Loans and other extensions consummation of credit under this Agreementthe Acquisition set forth in the Acquisition Agreement shall have been met or waived; provided that none of the conditions to the consummation of the Acquisition set forth in the Acquisition Agreement which are material to the interests of the Lenders shall have been waived without the consent of the Joint Lead Arrangers, (ii) no amendment or modification to the Second Lien Term Loans and terms of the Acquisition Agreement which are materially adverse to the interests of the Lenders shall have been amended or waived without the consent of the Joint Lead Arrangers and, (iii) other Indebtedness permitted pursuant to Section 6.01Holdings and the Company shall have consummated the Equity Financing.
(mf) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, by the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing DateCompany.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(og) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date as required by the Fee Letter and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counselCase LLP) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any other Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(ph) The Joint Lead Arrangers shall have received the financial statements referred to in Section 3.05.
(i) The Agents shall have received, prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(j) The Administrative Agent shall have received insurance certificates satisfying duly executed originals of a letter of direction from the requirements Company addressed to the Administrative Agent, on behalf of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at itself and Lenders, with respect to the disbursement on the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Agent shall have received a certificate signed by a Financial Officer proceeds of the BorrowerLoans made on such date. Each Agent and each Lender, together with satisfactory supporting schedules, certifying that the pro forma Debt by delivering its signature page to Adjusted EBITDA Ratio as of this Agreement and funding a Loan on the Closing Date (after giving effect shall be deemed to the Transactions) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately prior have acknowledged receipt of and consented to and approved each Loan Document and each other document required to be approved by any Agent or Lender, as applicable, on the Closing Date for which financial statements are available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10Date.
Appears in 1 contract
Sources: Credit Agreement (Edwards Group LTD)
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each the Issuing Bank on the Closing DateBank, a favorable written opinion of (i) O'Melveny Dechert, Price & Rhoa▇▇, ▇▇ecial counsel for Holdings and the Borrower, substantially to the effect set forth in Exhibit J-1, (ii) Kim & ▇han▇, ▇▇rean counsel for Holdings, the Borrower and Fair▇▇▇▇▇ LLP▇▇▇ea, special counsel for the Borrower, in form and substance reasonably satisfactory substantially to the Administrative Agent effect set forth in Exhibit J-2, and (iiiii) each other local U.S. and/or foreign counsel reasonably satisfactory listed on Schedule 4.02(a), substantially to the Administrative Agent as specified on Schedule 4.02(b)effect set forth in Exhibit J-3, in each case (A) dated the Closing Date, (B) addressed to each the Issuing Bank, the Administrative Agent and the Lenders Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower hereby instructs its request such counsel to deliver such opinions.
(cb) All legal matters incident to this Agreement, the borrowings Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders, to the Issuing Bank and to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(dc) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation or limited liability agreementincorporation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date date, from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
State; (ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
certifying (A) that attached thereto is a true and complete copy of the by-laws (or 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,
effect, (C) that the certificate or articles of incorporation or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed shown on the certificate of good standing furnished pursuant to clause (i) above,
, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
and (iv) such other documents as the Administrative AgentLenders, the Lenders and any Issuing Bank on or the Closing Date Administrative Agent may reasonably request (including without limitation, tax identification numbers and addresses)request.
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate certificate, dated the Closing Date and signed by a Responsible Financial Officer of the Borrower, together confirming compliance with all attachments contemplated thereby, the conditions precedent set forth in paragraphs (b) and the results (c) of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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 released4.01.
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(ge) The Administrative Agent shall have received satisfactory evidence that the fees all Fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(m) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F and signed by, at the Borrower's option, the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(o) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counsel) required to be reimbursed or paid by the Loan Parties hereunder, Borrower hereunder or under any other Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pf) The Pledge Agreement shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, and all the outstanding capital stock of the Borrower and the Subsidiaries shall have been duly and validly pledged thereunder to the Collateral Agent for the ratable benefit of the Secured Parties and certificates representing such 61 56 shares, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent; provided that to the extent to do so would cause adverse tax consequences to the Borrower, (i) neither the Borrower nor any Domestic Subsidiary shall be required to pledge more than 65% of the voting stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary shall be required to pledge the capital stock of any of its Foreign Subsidiaries.
(g) The Security Agreement shall have been duly executed by the Loan Parties party thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent.
(h) The Collateral Agent shall have received insurance certificates satisfying the requirements results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) in which the chief executive office of each such person is located, any offices of such persons in which records have been kept relating to accounts and the other jurisdictions in which Uniform Commercial Code filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 5.02 of this Agreement6.02 or have been released.
(qi) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(r) The Administrative Collateral Agent shall have received a certificate signed Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Financial Responsible Officer of the Borrower, together with satisfactory supporting schedules, certifying that the pro forma Debt to Adjusted EBITDA Ratio as .
(i) Each of the Closing Date (after giving effect Security Documents, in form and substance satisfactory to the Transactions) for Lenders, relating to each of the four fiscal quarters ending with Mortgaged Properties shall have been duly executed by the most recent fiscal quarter ended immediately prior parties thereto and delivered to the Closing Date for which financial statements are available is Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not greater be subject to any Lien other than 4.00 to 1.00. Notwithstanding anything herein to those permitted under Section 6.02, (iii) each of such Security Documents shall have been filed and recorded in the contrary, it is understood and agreed that the documents and other items set forth recording office as specified on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10.3.19
Appears in 1 contract
Sources: Credit Agreement (Fairchild Semiconductor International Inc)
First Credit Event. On the Closing Date:
(a) The This Agreement and each other Loan Document shall be in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent, each Joint Lead Arranger and each Lender and shall have been duly executed by the parties thereto and the Administrative Agent (or its counsel) shall have received from each party hereto thereto either (ia) a counterpart of this Agreement and each other Loan Document signed on behalf of such party or (iib) 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 AgreementAgreement and each other Loan Document) that such party has signed a counterpart of this AgreementAgreement and each other Loan Document.
(b) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion opinions of (i) O'Melveny ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the BorrowerLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Oklahoma counsel reasonably satisfactory to for the Administrative Agent as specified on Schedule 4.02(b)Loan Parties, in each case case, (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower each Loan Party hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) belowfollowing:
(i) a copy of the certificate or articles of incorporation or limited liability agreementcertificate of formation or other relevant constitutional documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, each certified as of a recent date by the Secretary secretary of State state (or other similar official) of the jurisdiction state of its such Person’s organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary the secretary of State state (or other similar official) or (B) in of the case state of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party’s organization;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer a Responsible Officer of each Loan Party Party, to be dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement or limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person Loan Party is a party and, in the case of the Borrowerif applicable, the borrowings hereunderhereunder and the granting of the Liens contemplated to be granted by each Loan Party under the Security Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Dateeffect,
(C) that the certificate or articles of incorporation incorporation, or limited liability agreement certificate of formation, as applicable, of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer officer, member or partner (as applicable) of such Person executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such personPerson, threatening the existence of such Loan Party;
(iii) a certificate of another officer Responsible Officer of each Loan Party as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer Responsible Officer executing the certificate pursuant to clause (ii) above (which certificate may be included in the certificate delivered pursuant to clause (ii) above); and
(iv) such Such other customary corporate documents with respect to any Loan Party as the Administrative Agent, the Lenders and any Issuing Bank on Agent may reasonably request.
(d) (i) A certificate signed by a Responsible Officer of each Loan Party certifying that as of the Closing Date may reasonably request and after giving effect to the Loans requested to be made on such date the representations and warranties made by such Loan Party are true and correct in all material respects except for representations and warranties that expressly refer to an earlier date which are true and correct in all material respects as of such earlier date and (including without limitationii) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying that as of the Closing Date and after giving effect to the Loans requested to be made on such date and the application of the proceeds therefrom, tax identification numbers (A) no Default or Event of Default has occurred and addresses)is continuing or will have occurred and be continuing and (B) as to the matters set forth in clause (h) below.
(e) The elements of the Collateral and Guarantee Requirement required with respect to items to be satisfied on 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, and including the results of tax and judgment lien searches and a search of the Uniform Commercial Code UCC (or equivalentequivalent under other similar law) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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.;
(f) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be reasonably satisfactory to the Agents.
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after After giving effect to the Transactions Transactions, and the other transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, Agreement and (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(mg) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F E and signed by, at by the Borrower's option, the Chief Financial chief financial officer or another Responsible Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and of the Borrower and its Subsidiaries on a consolidated basis basis, in each case, after giving effect to the Transactions on the Closing DateTransactions.
(nh) All material governmental and third party approvals There shall not have been, since December 31, 2010, any event or circumstance that are conditions has had, or would reasonably be expected to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agenthave, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereofa Material Adverse Effect.
(oi) 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 on or before two Business Days prior to the Closing Date, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ , LLP and U.S. and foreign local counselcounsel in any jurisdiction that the Administrative Agent deems relevant in respect of the transactions contemplated under this Agreement) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document Document. All such amounts will be paid with proceeds of the Loans made on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or under before the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersClosing Date.
(pj) The Administrative Agent shall have received insurance certificates satisfying evidence reasonably satisfactory to it that the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall Existing Credit Facilities have at least $100.0 million in cash available at been or concurrently with the Closing Date are being terminated, all Liens securing obligations under the Existing Credit Facilities have been or concurrently with the Closing Date are being released and all amounts outstanding thereunder have been (after giving effect or will be with the proceeds of the Loans on Closing Date) paid in full (such evidence to include a payoff letter and release of security interests from each agent, trustee or other representative of any Existing Credit Facilities, which payoff letter and release shall be in form and substance reasonably satisfactory to the borrowing of the Term Loans and Second Lien Term LoansAdministrative Agent).
(rk) The Administrative Agent shall have received a certificate signed by a Financial Responsible Officer of the BorrowerBorrower as to the matters set forth in clauses (e), together with (f) and (h) of this Section 4.02.
(l) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions, and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain or prevent the Transactions and copies of all such approvals shall have been delivered to the Lenders.
(m) At least five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received from the Borrower a financial model which includes the income statements, balance sheets and cash flow statements for each business segment and business unit consolidating to the Borrower and its Subsidiaries, to the Restricted Subsidiaries and to the Unrestricted Subsidiaries, in each case, containing projections of revenue, expenses and cash flows over a period ending no earlier than the Term Loan B Maturity Date, which shall be in form and substance satisfactory supporting schedulesto the Lenders. The model shall also include the calculation of EBITDA, certifying that Excess Cash Flow, the pro forma Debt to Adjusted EBITDA Interest Coverage Ratio and the Leverage Ratio through the projection period.
(n) The Administrative Agent shall have received as of the Closing Date (i) audited annual consolidated financial statements of the Borrower for the last two (2) fiscal years ending at least ninety (90) days prior to the Closing Date, (ii) for fiscal periods after the end of the last such year, unaudited consolidated quarterly financial statements of the Borrower for each fiscal quarter ending at least forty five (45) days prior to the Closing Date and (iii) consolidating balance sheets of the Borrower and related statements of operations for the year ended December 31, 2010 and the quarter ended March 31, 2011. The Administrative Agent shall have received correct and complete copies of the pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of the Closing Date, prepared after giving effect to the Transactionstransactions contemplated hereby and by the other Loan Documents to occur on the Closing Date.
(o) for the four fiscal quarters ending with the most recent fiscal quarter ended immediately Each Lender shall have received at least five (5) Business Days prior to the Closing Date all documentation and other written information requested by the Administrative Agent and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(p) (i) Except with respect to Mortgaged Property, the Collateral Agent shall have been granted on the Closing Date, for which financial statements are available is not greater than 4.00 the benefit of the Secured Parties, first priority perfected Liens on the Collateral (subject only to 1.00Permitted Liens). Notwithstanding anything herein The Pledged Collateral shall have been duly and validly pledged under the Collateral Agreement to the contraryCollateral Agent, it is understood for the benefit of the Secured Parties, and agreed that certificates representing the documents and other items set forth on Schedule 5.10(h) Pledged Collateral, accompanied by instruments of transfer indorsed in blank, shall be delivered after in the Closing Date in accordance with Section 5.10actual possession of the Collateral Agent.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either of the Initial Borrower, the L/C Issuer and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission 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 Lenders and each Issuing Bank on the Closing DateL/C Issuer, a favorable written opinion of (i) O'Melveny ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent Loan Parties and (ii) each local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing BankL/C Issuer, the Administrative 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 and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in a certificate of the case Secretary, Assistant Secretary, Responsible Officer or similar officer of each Loan Party each of dated the items referred to in clauses (i), (ii), (iii) Closing Date and (iv) belowcertifying:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership, certificate of formation or limited liability agreementother equivalent constituent and governing documents, including all amendments thereto, of each such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and or (2) otherwise certified by a Responsible Officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;),
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(Aiii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (Biv) below,
(Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of 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 or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(Dv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party Party, and
(Evi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate Certificate, dated the Closing Date and signed by a Responsible Officer of the Initial Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) ), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 Permitted Liens or have been released.
(f) The elements of the Acquisition contemplated to been, or will be consummated on the Closing Date shall have been consummated simultaneously or shall be consummated simultaneously substantially concurrently with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in the Transaction DocumentsAgreement, none of which Transaction Documents shall have been waived, amended, supplemented released (or otherwise modified in any material respect without approval of the Administrative Agent.
(g) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documents.
(i) The Borrower shall have received at least $75 million of gross cash proceeds from the Second Lien Term Loans.
(j) The terms and conditions of the Second Lien Loan Documents and the Intercreditor Agreement shall be arrangements reasonably satisfactory to the AgentsAdministrative Agent for such release shall have been made).
(k) The Lenders shall have received the financial statements referred to in Section 3.05.
(l) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans and (iii) other Indebtedness permitted pursuant to Section 6.01.
(me) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F I and signed by, at the Borrower's option, the Chief by a Financial Officer of the Initial Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Initial Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(of) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent 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 and U.S. and foreign local counselLLP) required to be reimbursed or paid by the Loan Parties hereunder, hereunder or under any Loan Document or under (which amounts may be offset against the engagement letter, dated as proceeds of January 27, 2005, among HNS, DTV, SkyTerra the Term B Facility and the Joint Lead ArrangersRevolving Facility).
(pg) Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived pursuant to the terms hereof) as of the Closing Date.
(h) The Administrative Agent shall have received insurance certificates satisfying at least three (3) Business Days prior to the Closing Date all documentation and 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 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 of Section 5.02 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 this Agreement.
(o) The Initial Borrower shall have delivered to the Administrative Agent a certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i) and Section 4.02(m) hereof.
(p) The Closing Date Mergers shall have been consummated or, substantially concurrently with the 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 Borrower proceeds of the Senior Unsecured Notes shall have at least $100.0 million in cash available at been, or substantially concurrently with the Closing Date (after giving effect initial borrowing hereunder shall be, released from escrow pursuant to the borrowing terms of the Term Loans and Second Lien Term Loans)Senior Unsecured Notes Escrow Agreement.
(r) The Arrangers, the Administrative Agent and the Collateral Agent shall have received (i) evidence as to whether (1) any Mortgaged Properties are located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards and (2) the communities in which any such Mortgaged Properties are located are participating in the National Flood Insurance Program, (ii) if there are any such Mortgaged Properties, the Initial Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent (1) as to the existence of each such Mortgaged Property and (2) as to whether the communities in which such Mortgaged Properties are located are participating in the National Flood Insurance Program, and (iii) if any such Mortgaged Properties are located in communities that participate in the National Flood Insurance Program, evidence satisfactory to each of the 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 Financial Officer broker authorized to bind the insurer, in which case copies of the Borrower, together with satisfactory supporting schedules, certifying that applicable policies shall be delivered to the pro forma Debt to Adjusted EBITDA Ratio as of 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 (after giving effect until the Termination Date), in accordance with the terms set forth in Section 5.02. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Transactions) Lenders unless an officer of the Administrative Agent responsible for the four fiscal quarters ending with transactions contemplated by the most recent fiscal quarter ended immediately Loan Documents shall have received notice from such Lender prior to the Closing Date for which financial statements are specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that Administrative Agent such Lender’s ratable portion of the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10initial Borrowing.
Appears in 1 contract
First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion (or opinions) of (i) O'Melveny Morgan, Lewis & Bockius LLP, special New York counsel for the Loan P▇▇▇▇▇▇, ▇▇ LLP, special counsel for the Borrower, in form and substance ▇▇rm ▇▇▇ ▇▇▇stance reasonably satisfactory to the Administrative Agent and (ii) local U.S. and/or foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (A) dated the Closing Date, (B) addressed to each Issuing BankBank on the Closing Date, the Administrative Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation incorporation, certificate of limited partnership or limited liability agreementcertificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person's jurisdiction of incorporation) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of 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 incorporation, certificate of limited partnership or limited liability agreement certificate of formation of such Loan Party have has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ed) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied (other than in the case of any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of stock certificates and the security agreement giving rise to the security interest therein) that is not provided on the Closing Date after the Borrower's use of commercially reasonable efforts to do so, which such security interest or deliverable shall be delivered within the time periods specified with respect thereto in Schedule 4.02(d)) and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection 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 releasedreleased concurrently with the closing of the Transactions and all fundings pursuant thereto on the Closing Date.
(fe) The elements of the Acquisition contemplated to be consummated on the Closing Date shall have been consummated or Merger shall be consummated simultaneously substantially concurrently with or immediately following the closing under this Agreement in accordance with applicable law in all material respects and the terms and conditions of the Acquisition as set forth in Merger Agreement, without material amendment, supplement, modification or waiver thereof which is materially adverse to the Transaction Documents, none of which Transaction Documents shall have been waived, amended, supplemented or otherwise modified in any material respect Lenders without approval the prior written consent of the Administrative Agent.
(gf) The Administrative Agent shall have received satisfactory evidence that the fees and expenses to be incurred through the Closing Date in connection with the Transactions shall not exceed $35.0 million.
(h) The Contribution Equity Financing shall have been consummated or shall be consummated simultaneously with or immediately following the closing under this Agreement in all material respects in accordance with the Transaction Documentsconsummated.
(ig) The Borrower shall have received at least $75 million of gross cash proceeds of (i) $250 million from the Second Lien Term Loansissuance of the Senior Unsecured Notes, (ii) $350 million from the issuance of the Senior Unsecured Toggle Notes, and (iii) $335 million from the issuance of the Senior Subordinated Notes.
(jh) The terms and conditions of the Second Lien Loan Documents Senior Unsecured Notes, the Senior Unsecured Toggle Notes and the Intercreditor Agreement Senior Subordinated Notes (including terms and conditions relating to the interest rate, fees, amortization, maturity, subordination (in the case of the Senior Subordinated Notes), covenants, defaults and remedies) shall be as set forth in the Notes Offering Memorandum or otherwise reasonably satisfactory to the AgentsAdministrative Agent.
(ki) The Lenders shall have received the financial statements referred to in Section 3.05.
(lj) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings shall have outstanding no Indebtedness and the Borrower and its the Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, (ii) the Second Lien Term Loans Senior Unsecured Notes, (iii) the Senior Unsecured Toggle Notes, (iv) the Senior Subordinated Notes, and (iiiv) other Indebtedness permitted pursuant to Section 6.01.
(mk) The Lenders shall have received a solvency certificate substantially in the form of Exhibit F B and signed by, at the Borrower's option, by the Chief Financial Officer of the Borrower or an independent valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming the solvency of the Borrower and its the Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(n) All material governmental and third party approvals that are conditions to closing the Transaction under the Transaction Agreement shall have been obtained and be in full force and effect or waived in accordance with the Transaction Agreement and with the consent of the Administrative Agent, and all applicable waiting periods required under the Transaction Agreement shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose materially adverse conditions on the Transaction or the financing thereof.
(ol) The Agents Administrative Agent shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Skadden, Arps, Slate, Meagher & ▇▇▇▇▇▇▇▇ LLP and U.S. and foreign local counselFlom LLP) required to be reimbursed or paid by the Loan Parties hereunder, Pa▇▇▇▇▇ ▇ere▇▇▇▇r or under any Loan Document or under the engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and the Joint Lead ArrangersDocument.
(pm) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(q) The Borrower shall have at least $100.0 million in cash available at the Closing Date (after giving effect to the borrowing of the Term Loans and Second Lien Term Loans).
(rn) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act.
(o) The Borrower shall have used commercially reasonable efforts to (i) have received a certificate signed corporate credit rating by S&P and a Financial Officer corporate family rating by Moody's and (ii) cause each of the BorrowerLoans to have received a rating b▇ ▇&▇ ▇nd Moody's. For purposes of determining compliance with th▇ ▇▇▇▇▇tions specified in this Section 4.02, together 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 supporting schedules, certifying that to the pro forma Debt to Adjusted EBITDA Ratio as Lenders unless an officer of the Closing Date (after giving effect to the Transactions) Administrative Agent responsible for the four fiscal quarters ending with transactions contemplated by the most recent fiscal quarter ended immediately Loan Documents shall have received notice from such Lender prior to the Closing Date for which financial statements are specifying its objection thereto and such Lender shall not have made available is not greater than 4.00 to 1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that Administrative Agent such Lender's ratable portion of the documents and other items set forth on Schedule 5.10(h) shall be delivered after the Closing Date in accordance with Section 5.10initial Borrowing.
Appears in 1 contract