Original Closing Date. The obligations of the Lenders to make the initial Loans and of the Issuing Banks to issue Letters of Credit on the Original Closing Date were subject to the satisfaction of the following conditions which were satisfied or waived on or before the Original Closing Date: (a) The Administrative Agent shall have received, on behalf of itself, the Lenders and the Issuing Banks, a favorable written opinion of (i) Shearman & Sterling, counsel for the Borrower, substantially to the effect set forth in Exhibit I-1 to the Original Credit Agreement, (ii) John M. Nanos, Senior Associate General Counsel of the Borrower, s▇▇▇▇▇▇▇▇▇▇▇▇ to the effect set forth in Exhibit I-2 to the Original Credit Agreement, and (iii) each local counsel listed on Schedule 4.02(a), substantially to the effect set forth in Exhibit I-3 to the Original Credit Agreement, in each case (A) dated the Original Closing Date, (B) addressed to the Issuing Banks, the Administrative Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Agents shall reasonably request, and the Company hereby requests such counsel to deliver such opinions. (b) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders, to the Issuing Banks and to the Agents. (c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified (to the extent relevant) as of a recent date by the Secretary of State of the state of its organization, and (to the extent possible) a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary (or similar officer) of each Loan Party dated the Original Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or articles of association of such Loan Party as in effect on the Original 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 of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Company, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not been amended since the date of the last amendment thereto 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; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Lenders, the Issuing Banks or the Agents may reasonably request. (d) The Administrative Agent shall have received a certificate, dated the Original Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. (e) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Original Closing Date, including, to the extent invoiced at least 1 Business Day prior to the Original Closing Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (f) The Pledge Agreement shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, and all the outstanding capital stock of the Subsidiaries (other than Inactive Subsidiaries) shall have been duly and validly pledged thereunder to the Collateral Agent for the ratable benefit of the Secured Parties and certificates representing such shares, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent (except with respect to Foreign Subsidiaries, certificates for which (to the extent available under applicable law) shall be delivered to the Collateral Agent within 60 days following the Original Closing Date); provided that to the extent to do so would cause adverse tax consequences to the Company, (i) neither the Company 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 Subsidiaries. (g) The Security Agreement shall have been duly executed by the Loan Parties party thereto and shall have been delivered to the Collateral Agent and shall be in full force and effect on such date and each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority security interest in and lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in such agreement shall have been delivered to the Collateral Agent. (h) The Collateral Agent shall have received the results of a search of the Uniform Commercial Code 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 receivable and the other jurisdictions in which Uniform Commercial Code filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 of the Original Credit Agreement or have been released. (i) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Original Closing Date and duly executed by a Responsible Officer of the Company. (i) Each of the Security Documents, in form and substance satisfactory to the Lenders, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02 to the Original Credit Agreement, (iii) each of such Security Documents shall have been filed and recorded in the recording office as specified on Schedule 3.19
Appears in 1 contract
Sources: Credit Agreement (Flowserve Corp)
Original Closing Date. The obligations obligation of each Lender to make Loans hereunder, the obligation of the Lenders Swingline Lender to make Swingline Loans hereunder and the initial Loans and obligation of the Issuing Banks Fronting Bank to issue Letters issue, amend, extend or renew any Letter of Credit hereunder on the Original Closing Date were subject to the satisfaction of the following conditions which were satisfied or waived on or before the Original Closing Dateconditions:
(a) The Administrative Agent Lenders shall have received, on behalf of itself, the Lenders and the Issuing Banks, received a favorable written opinion of each of (i) Shearman & Sterling, counsel for the Borrower, substantially to the effect set forth in Exhibit I-1 to the Original Credit Agreement, (ii) John M. Nanos, Senior Associate General Counsel of the Borrower, s▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President, Secretary and General Counsel of SSCC, JSCE, SNC and the Borrower, (ii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ to & ▇▇▇▇ LLP, counsel for SSCC, JSCE, SNC and the effect set forth in Exhibit I-2 to Borrower on the Original Credit AgreementClosing Date, and (iii) each local counsel listed on Schedule 4.02(a5.02(a), substantially to the effect set forth in Exhibit I-3 to the Original Credit Agreement, in each case (A) dated the Original Closing Date, (B) addressed to the Issuing BanksSenior Managing Agents, the Administrative Agent and Agent, the Managing Agents, the Fronting Bank, the Lenders, the Swingline Lender and the Collateral Agent and (C) covering such other matters relating to the Loan Documents and the Transactions as the Senior Managing Agents shall reasonably request. SSCC, JSCE and the Company Borrower hereby requests instruct such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, Agreement and the Borrowings and extensions of credit hereunder and the other Loan Documents shall be satisfactory to the Lenders, to the Issuing Banks Lenders and to Cravath, Swaine & ▇▇▇▇▇, counsel for the AgentsAdministrative Agent and the Senior Managing Agents on the Closing Date.
(c) The Administrative Agent Lenders shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified (to the extent relevant) as of a recent date by the Secretary of State of the state of its organization, and (to the extent possible) a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary (or similar officer) of each Loan Party dated the Original Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or articles of association of such Loan Party Party, as in effect on the Original 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 of such Loan Party Party, authorizing the execution, delivery and performance of the Loan Documents to which such person Loan Party is or will be a party and, in the case of the CompanyBorrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effecteffect as of the Closing Date, (C) that the certificate or articles of incorporation of such Loan Party have has not been amended since the date of the last amendment thereto 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; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the LendersLenders or Cravath, Swaine & ▇▇▇▇▇, counsel for the Issuing Banks or Administrative Agent and the Senior Managing Agents on the Closing Date, may reasonably request.
(d) The Administrative Agent Lenders shall have received a certificate, dated the Original Closing Date and signed by a Financial Officer of each of the BorrowerLoan Parties, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01.
(e) The Senior Managing Agents and the Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Original Closing Date, including, to the extent invoiced at least 1 Business Day prior to the Original Closing Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(f) The Guarantee Agreement shall have been duly executed by the Guarantors and delivered to the Collateral Agent, and shall be in full force and effect.
(g) The Pledge Agreement shall have been duly executed by the parties thereto Loan Parties and delivered to the Collateral Agent and shall be in full force and effect, and all the outstanding capital stock of JSCE, the Subsidiaries (Borrower and each other than Inactive Subsidiaries) Material Subsidiary of SSCC shall have been duly and validly pledged thereunder to the Collateral Agent for the ratable benefit of the Secured Parties and certificates representing such shares, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent (except with respect to Foreign SubsidiariesAgent; provided, certificates for which (to the extent available under applicable law) shall be delivered to the Collateral Agent within 60 days following the Original Closing Date); provided however, that to the extent to do so would cause adverse tax consequences to the Company, (i) neither the Company nor any Domestic Subsidiary shall be required to SSCC need only pledge more than 65% of the voting capital stock of any Foreign Subsidiary SSCC International and (ii) no Foreign Subsidiary shall be required to the Borrower need only pledge 65% of the capital stock of any of its SubsidiariesCCA de Baja California SA de CV.
(gh) The Each of the Security Agreement, the SNC Security Agreement and the Trademark 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 effect, and each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Administrative Collateral 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 valid and perfected first-first- priority security interest in and or lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in each of such agreement agreements shall have been delivered to the Collateral Agent.
(hi) The Collateral Agent shall have received the 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 Persons are located and in which records have been kept relating to accounts receivable and the other jurisdictions in which Uniform Commercial Code filings (or equivalent filings) are to be made pursuant to the preceding paragraphSection 5.01(h), together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent Senior Managing Agents that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 of the Original Credit Agreement 7.02 or have been released.
(ij) The Collateral Agent shall have received a Perfection Certificate with respect to the each Loan Parties Party dated the Original Closing Date and duly executed by a Responsible Financial Officer and the chief legal officer of SSCC, JSCE, SNC and the CompanyBorrower.
(i) Each of the Mortgages and the other Security Documents, in form and substance satisfactory to the Lenders, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each none of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02 to the Original Credit Agreement7.02, (iii) each of such Security Documents shall have been filed and recorded in the recording office as specified on Schedule 3.194.19
Appears in 1 contract