Conditions to Initial Credit Extension. The obligation of each Lender to fund its portion of the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) and unless otherwise specified, each properly executed by an authorized officer of the signing Loan Party, each dated the Conditions Effective Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Date) or the Closing Date, as appropriate, and each in form and substance satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement, the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective Date; (ii) Notes executed by the Borrower in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organization; (v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Parties) are not less than $36,000,000, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred no material adverse change in (x) the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects of the Borrower or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents; (vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effect; (vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statement; and (C) such other financial information as the Administrative Agent may request. (viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party; (ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor; (x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Date; and (xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require. (b) Any fees due and payable at the Conditions Effective Date shall have been paid. (c) The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date. (d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner. (e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with: (i) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons; (ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages; (iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral; (iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender; (v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and (vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Initial Credit Extension. The obligation of each Lender to fund make its portion of the initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01 and the paragraph immediately succeeding Section 4.01(h)) of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals originals, facsimiles or facsimiles other electronic copies (in each case, followed promptly by originalsoriginals if requested) and unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the signing Loan Party, each dated the Conditions Effective Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Date) or the Closing Date, as appropriate, and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement, the Agreement Regarding CollateralGuaranty, the GuarantiesSecurity Agreement (and intellectual property security agreements required thereunder), and all each of the other Collateral Loan Documents each dated as of to be entered into on the Closing Date and prior to the initial Credit Extension, in any case, subject to the provisions of this Section 4.01 and together with (except as provided in the Collateral Documents and/or the provisions of this Section 4.01):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank, and
(B) evidence that all other actions, recordings and filings (UCC financing statements and intellectual property security agreements) that the Administrative Agent or as of Collateral Agent may deem reasonably necessary to satisfy the Conditions Effective DateCollateral and Guarantee Requirement shall have been taken, completed or otherwise provided for;
(ii) Notes a Note executed by the Borrower in favor of each Lender requesting such Notes, each that has requested a Note at least five (5) Business Days in a principal amount equal to such Lender's Committed Sum, each dated as advance of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates (including a certificate substantially in the form of Exhibit L), copies of Organization Documents of the Loan Parties, resolutions or other action, action and incumbency certificates and/or other certificates of officers Responsible Officers of each Loan Party as Party, evidencing the Administrative Agent may require to establish the identities of and verify the identity, authority and capacity of each officer Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyparty or is to be a party on the Closing Date;
(iv) such evidence as an opinion from Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent may reasonably require to verify that and each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organizationLender;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Parties) are not less than $36,000,000an opinion from [ ], (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred no material adverse change in (x) the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects of the Borrower or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed [ ] counsel to the Borrower pursuant Loan Parties, addressed to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any GuarantorAdministrative Agent, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially Collateral Agent and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documentseach Lender;
(vi) a certificate of a Responsible Officer (A) listing attesting to the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) Solvency of the definition of Material Agreements Borrower and those agreements set forth in CLAUSES its Subsidiaries (a), (b), (c), and (don a consolidated basis) of on the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory Closing Date after giving effect to the Required LendersTransactions, and (B) attaching a copy of each of from the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effectBorrower’s chief financial officer or other officer with equivalent duties;
(vii) a certificate Committed Loan Notice or Letter of a Responsible Officer providing copies Credit Application, as applicable, relating to the initial Credit Extension and an associated letter of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statement; and (C) such other financial information as the Administrative Agent may request.direction;
(viii) opinions from (A) Xxxxx Xxxxxcopies of recent customary state level UCC lien, L.L.P., counsel tax and judgment searches prior to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party Closing Date with respect to each deed of trust or mortgage executed by a the Loan Party;Parties located in the United States; and
(ix) a letter from CT Corporation System, Inc., to accept service of process if available in the State relevant jurisdiction, good standing certificates or certificates of Texas on behalf of the Borrower status, as applicable and bring down telegrams or facsimiles, for each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Date; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may requireLoan Party.
(b) Any All fees due and payable expenses required to be paid on the Closing Date hereunder or pursuant to any agreement in writing entered into by the Parent or the Borrower, as applicable, to the extent, with respect to expenses, invoiced at least three (3) Business Days prior to the Conditions Effective Date Closing Date, shall have been paidpaid in full in cash or will be paid on the Closing Date out of the initial Credit Extension.
(c) The Borrower Prior to or substantially simultaneously with the initial Credit Extension, (i) the Refinancing shall have paid Attorney Costs been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Administrative Agent Acquisition Agreement, and the Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted, in any respect that is materially adverse to the extent invoiced Lenders or the Arrangers (in their capacities as such) without the Arrangers’ prior towritten consent (such consent not to be unreasonably withheld, conditioned or ondelayed), it being understood and agreed that any modification, consent, waiver or amendment to the Conditions Effective Datedefinition of “Material Adverse Effect” in the Acquisition Agreement without the prior written consent of the Arrangers shall be deemed so materially adverse.
(d) The Borrower Lead Arrangers shall be have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) a direct wholly-owned subsidiary pro forma unaudited consolidated balance sheet as of December 31, 2017 and related pro forma unaudited consolidated statements of operations for the fiscal year ended December 31, 2017, in each case prepared after giving effect to the Transactions as if the Transactions had occurred as of December 31, 2017 (in the case of such balance sheet) or at the beginning of the MLP, and MarkWest Parent shall own at least 51% period covered by the pro forma statement of operations required pursuant to this clause (iii) (in the case of the General Partnerstatements of operations), which pro forma financial statements shall not be required to meet the requirements of Regulation S-X under the Securities Act or other accounting rules and regulations of the SEC promulgated thereunder (including applying purchase method of accounting).
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as the The Administrative Agent and the Lenders shall have requested, received at least three (3) Business Days prior to the Closing Date all documentation and such termination statements or other documents information about the Loan Parties as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining reasonably requested in writing at least ten (10) Business Days prior to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested Closing Date by the Administrative Agent or any Lender;the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(vf) certificates evidencing all Since the date of the issued Acquisition Agreement, there shall not have been any fact, event, occurrence, development, change or state of circumstances or facts that has had a Closing Date Material Adverse Effect.
(g) (i) The Specified Acquisition Agreement Representations are true and outstanding shares correct as required by the terms of capital stockthe definition thereof and (ii) the Specified Representations are true and correct in all material respects on and as of the Closing Date.
(h) The Administrative Agent shall have received a certificate, partnership interestsdated as of the Closing Date, or membership interests pledged pursuant theretoof a Responsible Officer of the Borrower, which certificates confirming compliance with the condition precedent set forth in Section 4.01(c), (f) and (g). The making of the initial Credit Extensions by the Lenders hereunder shall in each case conclusively be accompanied deemed to constitute an acknowledgement by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent and each Lender that each of the conditions precedent set forth in this Section 4.01 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person. Notwithstanding anything to the contrary contained herein, none of the making of any representation under Article V (except as expressly set forth in Sections 4.01(a)(vi) and 4.01(g)) or the accuracy of any such representation (except as expressly set forth in Sections 4.01(a)(vi) and 4.01(g)) shall constitute a condition precedent to the availability and/or initial funding of the Facilities on the Closing Date, and the only conditions (express or implied) to the availability of the Facilities on the Closing Date are those expressly set forth in this Section 4.01, and such conditions shall be subject in all respects to the provisions of this Section 4.01, including the paragraph below. Notwithstanding the foregoing, to the extent any security interest in the Collateral is not or cannot be provided on the Closing Date (other than the pledge and perfection of security interest in (i) assets that may be perfected by the filing of a financing statement under the UCC and (ii) the Equity Interests of the Domestic Subsidiaries of the Borrower (with respect to the Target and its subsidiaries, after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense) (to the extent required by the definition of “Collateral and Guarantee Requirement”), then the provision and/or perfection of a security interest in such uncertificated securities has been transferred Collateral shall not constitute a condition precedent to the availability and perfected by the Administrative Agent for the benefit initial funding of the Lenders Loans on the Closing Date but may, if required, instead be delivered and/or perfected in accordance with the Uniform Commercial Code; and
(viSection 6.12(b) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and bindinghereof.
Appears in 1 contract
Conditions to Initial Credit Extension. The obligation of each Lender to fund make its portion of the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Unless waived by all the Lenders, the Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) and unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the signing Loan Party, each dated the Conditions Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Date) or the Closing Date, as appropriate, and each in form and substance satisfactory to the Administrative Agent and its legal counselthe Lenders:
(i) executed counterparts of this Agreement, the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective Date;
(ii) Notes executed by the Borrower in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organization;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred all representations and that the gross proceeds warranties of the sale Borrower contained in Article V are true and correct on and as of limited partner units (other than proceeds paid by the General Partner and MarkWest Parties) are not less than $36,000,000Closing Date, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and there exists as of such datedate no Default or Event of Default, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred been no material adverse change in (x) event or circumstance since the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects date of the Borrower most recent Audited Financial Statements which has or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) have a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a)Adverse Effect, (b)D) that the Separation Date has occurred pursuant to the Spin-Off Documents, which are in full force and effect and in substantially the form delivered in connection with the Effectiveness Date (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be or otherwise in form and substance satisfactory to the Required Administrative Agent and the Lenders), (E) that the Borrower's and New Ceridian's senior management are highly confident that the Spin-Off Consummation Date will occur by no later than the Spin-Off Deadline; (BF) attaching that the Borrower has obtained stockholder approval to effect a copy of each reverse stock split of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statement; and (C) such other financial information as the Administrative Agent may request.
(viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Date; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date shall have been paid.
(c) The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding 's shares of capital stock, partnership interests, or membership interests pledged pursuant theretocommon stock at a ratio not to exceed 1-for-5, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and binding.occur
Appears in 1 contract
Samples: Credit Agreement (Arbitron Inc)
Conditions to Initial Credit Extension. The obligation of the LC Issuer and each Lender to fund make its portion of the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The the Administrative Agent's ’s receipt of the following, each of which shall be originals originals, facsimile or facsimiles other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail), followed promptly by originals) and originals unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Conditions Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Closing Date) , or if a Loan Document previously delivered in connection with the Existing Credit Agreement and not being restated in connection with this Agreement, a date before the Closing Date, as appropriate, ) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this AgreementAgreement sufficient in number for distribution to the Administrative Agent, each Lender and the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective DateLead Borrower;
(ii) Notes a Note executed by the Borrower Borrowers in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective DateNote;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to establish enter into this Agreement and the identities of other Loan Documents to which such Loan Party is a party or is to become a party and verify (B) the identity, authority and capacity of each officer Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party;
(iv) copies of each Loan Party’s Organization Documents and such evidence other documents and certifications as the Administrative Agent may reasonably require to verify evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the jurisdiction conduct of its organizationbusiness requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable written opinion of Xxxxxxx Xxxxx Xxxxx and Xxxxxxxx LLP, counsel to the Loan Parties, dated the Closing Date and addressed to the Administrative Agent, LC Issuer and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the MLP Offering Closing has occurred conditions specified in Sections 4.02(a) and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Partiesb) are not less than $36,000,000have been satisfied, (B) that there has been no event or circumstance since November 29, 2014 that has had or could be reasonably expected to have, either individually or in the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such dateaggregate, a Material Adverse Effect, (C) that no Default or Event to the Solvency of Default has occurred and is continuing the Loan Parties as of such datethe Closing Date after giving effect to the transactions contemplated hereby, and (D) since December 31either that (1) no consents, 2001 there has occurred no material adverse change licenses or approvals are required in (x) connection with the businessexecution, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects delivery and performance by such Loan Party and the validity against such Loan Party of the Borrower or any GuarantorLoan Documents to which it is a party, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E2) that the Purchased Assets all such consents, licenses and approvals have been conveyed to the Borrower pursuant to the Contribution Agreement, obtained and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is are in full force and effect;
(vii) a certificate duly completed Compliance Certificate as of the last day of the Fiscal Quarter of the Lead Borrower and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer providing copies of the following or a copy Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the MLP Registration Statement containing Administrative Agent required under the following Loan Documents have been obtained and are in effect;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement, duly executed by the Equipment Term Loan Lender and the Loan Parties;
(xi) the Representations and Warranties of Officers, duly executed by the Loan Parties;
(xii) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xiii) results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances;
(A) audited opening balance sheet for each all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the first priority Liens (subject as to priority only to Permitted Encumbrances which are non-consensual Permitted Encumbrances, permitted purchase money Liens, the interests of lessors under Capital Leases or Liens on Equipment Term Loan Priority Collateral securing obligations under the MLP and Equipment Term Loan Documents to the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as extent set forth in the MLP Registration Statement; Intercreditor Agreement) intended to be created under the Loan Documents and (C) all such other financial information as documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Administrative Agent may request.
(viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 heretoAgent, (B) Xxxxx Xxxxxx & Xxxxxx LLPthe DDA Notifications, counsel Credit Card Notifications, and Blocked Account Agreements required pursuant to each Loan Party, substantially in the form of EXHIBIT F-1 heretoSection 6.13 hereof, (C) Xxxxx Xxxxxxx, counsel control agreements with respect to each the Loan Party, substantially in the form of EXHIBIT F-2 heretoParties’ securities and investment accounts, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed Collateral Access Agreements as required by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective DateAdministrative Agent; and
(xixv) such other assurances, certificates, documents, or consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders Agent reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date Administrative Agent shall have been paid.received a Borrowing Base Certificate dated the Closing Date, relating to the fiscal month ended on January 3, 2015, and executed by a Responsible Officer of the Lead Borrower;
(c) The Borrower Borrowers shall have minimum opening Excess Availability of not less than $40,000,000 after the application of proceeds of the initial Loan and/or the issuance of the initial Letters of Credit and after provision for payment of all fees and expenses of the transaction required to be paid Attorney Costs by Borrowers on the Closing Date under the Agreement or the other Loan Documents,
(d) the Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since November 29, 2014;
(e) the Administrative Agent shall have received (i) updated projected monthly Consolidated balance sheets, income statements, statements of cash flows and availability of Borrowers and Guarantors for the period through the end of the 2015 Fiscal Year, (ii) updated projected annual Consolidated balance sheets, income statements, statements of cash flows and availability of Borrowers and Guarantors through the end of the 2019 Fiscal Year, in each case as to the projections described in clauses (i) and (ii) with the assumptions set forth in all of such projections in form and substance reasonably satisfactory to Administrative Agent, and an opening pro forma balance sheet for Borrowers and Guarantors, (iii) third party appraisals of the inventory, in form and containing assumptions and appraisal methods satisfactory to Administrative Agent and the Lead Borrower by an appraiser acceptable to Administrative Agent on which Administrative Agent and Lenders are permitted to rely, with results reasonably satisfactory to Administrative Agent (it being understood that the Borrowers shall not be obligated to reimburse Administrative Agent for the cost of any such inventory appraisal conducted prior to the Closing Date in connection with this facility), and (iv) field examinations of the business and collateral of Borrowers and Guarantors in accordance with Administrative Agent’s customary procedures and practices, with results reasonably satisfactory to Administrative Agent (it being understood that the Borrowers shall not be obligated to reimburse Administrative Agent for the cost of any such field examinations conducted prior to the Closing Date in connection with this facility), and (v) updates of customary legal due diligence, with results reasonably satisfactory to Administrative Agent;
(f) there shall be no material pending or, to Borrowers’ actual knowledge, threatened, litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to any Loan Party, the credit facility evidenced by this Agreement or the Equipment Term Loan Facility;
(g) there shall not have occurred any (i) default of any Material Contract or of any agreements evidencing any debt of any Loan Party, (ii) default under any of the Equipment Term Loan Documents or (iii) any Default or Event of Default under any of the Loan Documents;
(h) there shall be no material misstatements in or omissions from the materials previously furnished to Administrative Agent by Borrowers and Guarantors and Administrative Agent have not become aware of any material information or other matter that is inconsistent in a material and adverse manner with any previous due diligence, information or matter (including any financial information).
(i) the consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(j) the Administrative Agent shall have received reasonably satisfactory confirmation that all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior toto or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or on, to be incurred by it through the Conditions Effective Dateclosing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent) will be paid by the Borrowers concurrently with the initial Credit Extension.
(dk) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and received all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral;
(iv) such consents, estoppels, subordination agreements documentation and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as information requested by the Administrative Agent as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Act.
(l) no material changes in governmental regulations or policies affecting any Loan Party or any Lender;Credit Party shall have occurred prior to the Closing Date.
(vm) certificates evidencing all the Equipment Term Loan Facility shall have been consummated (or consummated substantially concurrently with the consummation of the issued facility evidenced by this Agreement) on terms and outstanding shares of capital stock, partnership interests, or membership interests pledged conditions and pursuant thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence to documentation reasonably satisfactory to Administrative Agent.
(n) the Closing Date shall have occurred on or before February 28, 2015 or such other date as to which the Lead Borrower and the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; may agree. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Conditions Effective Closing Date, and such notice shall be conclusive and bindingbinding on the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Stein Mart Inc)
Conditions to Initial Credit Extension. The obligation effectiveness of each Lender to fund its portion of the initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals originals, facsimiles or facsimiles electronic (pdf.) transmissions (followed promptly by originals) and unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the signing Loan PartyCompany, each dated the Conditions Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Closing Date) or the Closing Date, as appropriate, and each in form and substance reasonably satisfactory to the Administrative Agent and Agent, its legal counselcounsel and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Agreement Regarding CollateralAdministrative Agent, each Lender and the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective DateCompany;
(ii) Notes executed by the Borrower Company in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers Responsible Officers of each Loan Party the Company as the Administrative Agent may require to establish evidencing the identities of and verify the identity, authority and capacity of each officer Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyDocuments;
(iv) such evidence documents and certifications as the Administrative Agent may reasonably require to verify evidence that each Loan Party the Company is duly organized or formed, and is validly existing, and in good standing in the its jurisdiction of its organization, including certified copies of the Company’s Organization Documents, and certificates of good standing;
(v) a favorable opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Company, addressed to the Administrative Agent and each Lender, in the form set forth in Exhibit H;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying Company certifying, as of the Closing Date, (A) that the MLP Offering Closing has occurred conditions specified in Sections 4.02(a) and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Partiesb) are not less than $36,000,000have been satisfied, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred been no material adverse change in (x) event or circumstance since the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects date of the Borrower Audited Financial Statements that has had or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall could be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower have, either individually or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statementaggregate, a Material Adverse Effect; and (C) such other financial information the Consolidated Leverage Ratio determined as of the Administrative Agent may request.
last day of the immediately preceding fiscal quarter (viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel on a Pro Forma Basis after giving effect to each Loan Party the USD Term Borrowing and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering EUR Term Borrowing and the initial funding use of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Dateproceeds thereof); and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.. 145501075_6
(b) (i) Upon the reasonable request of any Lender made at least 3 days prior to the Closing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 2 days prior to the Closing Date and (ii) at least 2 days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees due and payable at required to be paid on or before the Conditions Effective Closing Date pursuant to the Loan Documents shall have been paid.
(cd) The Borrower Unless waived by the Administrative Agent, the Company shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% two Business Day prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the General Partner.
closing proceedings (e) Documents, executed by each Company provided that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent and (ii) the Administrative Agent may in its discretion waive this condition without obtaining the consent of the Required Lenders). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have requested, and received notice from such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining Lender prior to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant proposed Closing Date specifying its objection thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Initial Credit Extension. The obligation of each Lender to fund its portion of the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) and unless otherwise specified, each properly executed by an authorized officer of the signing Loan Party, each dated the Conditions Effective Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Date) or the Closing Date, as appropriate, and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective Date;
(ii) Notes executed by the Borrower in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organization;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Parties) are not less than $36,000,000, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred no material adverse change in (x) the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects of the Borrower or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statement; and (C) such other financial information as the Administrative Agent may request.
. (viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 F-1 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 F-2 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 F-3 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Date; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date shall have been paid.
(c) The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Initial Credit Extension. The effectiveness of this Agreement, and the obligation of the L/C Issuer and each Lender to fund make its portion of the initial Credit Extension hereunder is hereunder, are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s and each Lender’s receipt of the following, each of which shall be originals or facsimiles telecopies or pdf or similar electronic copies (followed promptly by originals) and unless otherwise specified, and in the case of documents delivered by the Borrower, each properly executed by an authorized officer a Responsible Officer of the signing Loan PartyBorrower, each dated the Conditions Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Closing Date) or the Closing Date, as appropriate, and each in form and substance satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement, the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective Date;
(ii) Notes a Note executed by the Borrower in favor of each Lender requesting such Notes, each in a principal amount equal Note at least one Business Day prior to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions the Collateral Documents and any restatements or other actionreaffirmations thereof, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organization;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Parties) are not less than $36,000,000, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred no material adverse change in (x) the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects of the Borrower or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Loan Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31thereto, 2001 as set forth which, among other things, reaffirm first priority Liens in the MLP Registration Statement; and (C) such other financial information as Collateral owned by the Administrative Agent may request.
(viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Date; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date shall have been paid.
(c) The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessaryParties, together with:
(iA) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any PersonsPersons (other than the Liens securing the Obligations and the Liens permitted by Section 7.01);
(iiB) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing evidence of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies establishment of casualty insurance pertaining to the Collateral;
(iv) such consentseach Dominion Account and related lockboxes, estoppels, subordination agreements and other documents and instruments together with fully-executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant Deposit Account Control Agreements with respect thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(viC) except as provided for in Schedule 6.16, evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), such Liens and to enhance the Administrative Agent's ’s ability to preserve and protect its interests in and access to the Collateral, have been taken; The ;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers, secretary, assistant secretary or manager of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and in good standing in the jurisdiction of its formation;
(vi) a satisfactory opinion of Xxxxx Xxxx & Xxxxxxxx, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(vii) a Borrowing Base Report (calculated as of a date not more than twenty-eight (28) days prior to the Closing Date) demonstrating that, after giving effect to any Credit Extensions made on the Closing Date, and the payment by the Borrower of all fees and expenses incurred in connection herewith, (x) Excess Availability shall notify not be less than $150,000,000 and (y) the sum of (A) Excess Availability and (B) cash and Cash Equivalents held in deposit accounts and securities accounts with the Administrative Agent and over which the Administrative Agent has control shall not be less than $250,000,000;
(viii) a certificate of a Responsible Officer of the Borrower as to the matters set forth below in this clause (viii):
(A) attaching the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of February 28, 2013, and the related consolidated statements of income or operations for such month and the related consolidated statements of income or operations and cash flows for the portion of the Borrower’s fiscal year then ended, and certifying that such statements (1) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (2) fairly present the financial condition of the Borrower and its Subsidiaries, as of the date thereof and their results of operations for the periods covered thereby, subject to the absence of footnotes and to normal year-end audit adjustments;
(B) certifying that, after giving effect to any Credit Extensions made on the Closing Date, the representations and warranties of the Borrower and the Lenders other Loan Parties contained in Article V or in any other Loan Document are true and correct as of the Conditions Effective Closing Date except as disclosed in such certificate and except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date;
(C) certifying that, after giving effect to any Credit Extensions made on the Closing Date, no Default or Event of Default shall exist;
(D) certifying that there shall not have occurred since December 31, 2012 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect; and
(E) certifying that the Loan Parties, on a consolidated basis, are Solvent;
(b) the Administrative Agent’s receipt of satisfactory policies or certificates of insurance for the insurance carried by the Borrower and such notice its Subsidiaries, all in compliance with the Loan Documents;
(c) the Closing Date shall have occurred on or before April 30, 2013;
(d) any fees and expenses of the Arrangers, the Administrative Agent and the Lenders required to be paid on or before the Closing Date and invoiced at least one Business Day prior to the Closing Date shall have been paid; and
(e) all fees, charges and disbursements of counsel to the Administrative Agent, including any local counsel, to the extent invoiced at least one Business Day prior to or on the Closing Date, shall have been paid. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be conclusive 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 a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Upon satisfaction of all the conditions specified in Section 4.01 as of the Closing Date, the Existing Revolving Credit Agreement will be amended and bindingrestated by this Agreement (with the Existing Letters of Credit being renewed and continued) and all Liens securing obligations under the Existing Revolving Credit Agreement shall be automatically continued.
Appears in 1 contract
Samples: Revolving Credit Agreement (Western Refining, Inc.)
Conditions to Initial Credit Extension. The effectiveness of this Agreement, and the obligation of the L/C Issuer and each Lender to fund make its portion of the initial Credit Extension hereunder is hereunder, are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s and each Lender’s receipt of the following, each of which shall be originals or facsimiles telecopies or pdf or similar electronic copies (followed promptly by originals) and unless otherwise specified, and in the case of documents delivered by the Borrower, each properly executed by an authorized officer a Responsible Officer of the signing Loan PartyBorrower, each dated the Conditions Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Closing Date) or the Closing Date, as appropriate, and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement, the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective Date;
(ii) Notes a Note executed by the Borrower in favor of each Lender requesting such Notes, each in a principal amount equal Note at least one Business Day prior to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions the Collateral Documents and any restatements or other actionreaffirmations thereof, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organization;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Parties) are not less than $36,000,000, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred no material adverse change in (x) the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects of the Borrower or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Loan Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31thereto, 2001 as set forth which, among other things, reaffirm first priority Liens in the MLP Registration Statement; and (C) such other financial information as Collateral owned by the Administrative Agent may request.
(viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Date; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date shall have been paid.
(c) The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessaryParties, together with:
(iA) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
Persons (ii) funds sufficient to pay any filing or recording tax or fee in connection with any other than the Liens securing the Obligations and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed Liens permitted by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial CodeSection 7.01); and
(viB) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), such Liens and to enhance the Administrative Agent's ’s ability to preserve and protect its interests in and access to the Collateral, have been taken; The ;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers, secretary, assistant secretary or manager of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and in good standing in the jurisdiction of its formation;
(vi) a reasonably satisfactory opinion of Daxxx Xxxx & Waxxxxxx, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(vii) a Borrowing Base Report (calculated as of August 31, 2014 and which may be reported utilizing the Borrowing Base as defined in the Existing Revolving Credit Agreement) demonstrating that, after giving effect to any Credit Extensions made on the Closing Date, and the payment by the Borrower of all fees and expenses incurred in connection herewith, Excess Availability shall notify not be less than $150,000,000;
(viii) a certificate of a Responsible Officer of the Borrower as to the matters set forth below in this clause (viii):
(A) attaching the unaudited consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of August 31, 2014, and the related consolidated statements of income or operations for such month and the related consolidated statements of income or operations and cash flows for the portion of the Borrower’s fiscal year then ended, and certifying that such statements (1) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (2) fairly present the financial condition of the Borrower and its Restricted Subsidiaries, as of the date thereof and their results of operations for the periods covered thereby, subject to the absence of footnotes and to normal year-end audit adjustments;
(B) certifying that, after giving effect to any Credit Extensions made on the Closing Date, the representations and warranties of the Borrower and the Lenders other Loan Parties contained in Article V or in any other Loan Document are true and correct as of the Conditions Effective Closing Date except as disclosed in such certificate and except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date;
(C) certifying that, after giving effect to any Credit Extensions made on the Closing Date, no Default or Event of Default shall exist;
(D) certifying that there shall not have occurred since December 31, 2013 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect; and
(E) certifying that the Loan Parties, on a consolidated basis, are Solvent;
(b) the Administrative Agent’s receipt of satisfactory policies or certificates of insurance for the insurance carried by the Borrower and such notice its Restricted Subsidiaries, all in compliance with the Loan Documents;
(c) the Closing Date shall have occurred on or before October 31, 2014;
(d) any fees and expenses of the Arrangers, the Administrative Agent and the Lenders required to be paid on or before the Closing Date and invoiced at least one Business Day prior to the Closing Date shall have been paid; and
(e) all fees, charges and disbursements of counsel to the Administrative Agent, including any local counsel, to the extent invoiced at least one Business Day prior to or on the Closing Date, shall have been paid. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be conclusive 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 a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Upon satisfaction of all the conditions specified in Section 4.01 as of the Closing Date, (i) the Existing Revolving Credit Agreement will be amended and bindingrestated by this Agreement (with the Existing Letters of Credit and any outstanding loans thereunder being renewed and continued), (ii) all Liens securing obligations under the Existing Revolving Credit Agreement shall be automatically continued and (iii) each Lender agrees that its commitment under the Existing Revolving Credit Agreement shall be reallocated among the Lenders such that the Commitments of the Lenders under this Agreement are as set forth on Schedule 2.01 hereto and the Administrative Agent may make such adjustments as it deems necessary in order to effectuate such reallocation among the Lenders.
Appears in 1 contract
Samples: Revolving Credit Agreement (Western Refining, Inc.)
Conditions to Initial Credit Extension. The obligation of the LC Issuer and each Lender to fund make its portion of the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The the Administrative Agent's ’s receipt of the following, each of which shall be originals originals, facsimile or facsimiles other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail), followed promptly by originals) and originals unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Conditions Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Closing Date) , or if a Loan Document previously delivered in connection with the Existing Credit Agreement and not being restated in connection with this Agreement, a date before the Closing Date, as appropriate, ) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this AgreementAgreement sufficient in number for distribution to the Administrative Agent, each Lender and the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective DateLead Borrower;
(ii) Notes a Note executed by the Borrower Borrowers in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective DateNote;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to establish enter into this Agreement and the identities of other Loan Documents to which such Loan Party is a party or is to become a party and verify (B) the identity, authority and capacity of each officer Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party;
(iv) copies of each Loan Party’s Organization Documents and such evidence other documents and certifications as the Administrative Agent may reasonably require to verify evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the jurisdiction conduct of its organizationbusiness requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable written opinion of Xxxxxxx Xxxxx Xxxxx and Xxxxxxxx LLP, counsel to the Loan Parties, dated the Closing Date and addressed to the Administrative Agent, LC Issuer and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the MLP Offering Closing has occurred conditions specified in Sections 4.02(a) and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Partiesb) are not less than $36,000,000have been satisfied, (B) that there has been no event or circumstance since November 29, 2014 that has had or could be reasonably expected to have, either individually or in the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such dateaggregate, a Material Adverse Effect, (C) that no Default or Event to the Solvency of Default has occurred and is continuing the Loan Parties as of such datethe Closing Date after giving effect to the transactions contemplated hereby, and (D) since December 31either that (1) no consents, 2001 there has occurred no material adverse change licenses or approvals are required in (x) connection with the businessexecution, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects delivery and performance by such Loan Party and the validity against such Loan Party of the Borrower or any GuarantorLoan Documents to which it is a party, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E2) that the Purchased Assets all such consents, licenses and approvals have been conveyed to the Borrower pursuant to the Contribution Agreement, obtained and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is are in full force and effect;
(vii) a certificate duly completed Compliance Certificate as of the last day of the Fiscal Quarter of the Lead Borrower and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer providing copies of the following or a copy Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the MLP Registration Statement containing Administrative Agent required under the following Loan Documents have been obtained and are in effect;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement, duly executed by the Term Loan Agent and the Loan Parties;
(xi) the Representations and Warranties of Officers, duly executed by the Loan Parties;
(xii) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xiii) results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances;
(A) audited opening balance sheet for each all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the first priority Liens (subject as to priority only to Permitted Encumbrances which are non-consensual Permitted Encumbrances, permitted purchase money Liens, the interests of lessors under Capital Leases or Liens on Term Loan Priority Collateral securing obligations under the MLP and Term Loan Documents to the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as extent set forth in the MLP Registration Statement; Intercreditor Agreement) intended to be created under the Loan Documents and (C) all such other financial information as documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Administrative Agent may request.
(viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 heretoAgent, (B) Xxxxx Xxxxxx & Xxxxxx LLPthe DDA Notifications, counsel Credit Card Notifications, and Blocked Account Agreements required pursuant to each Loan Party, substantially in the form of EXHIBIT F-1 heretoSection 6.13 hereof, (C) Xxxxx Xxxxxxx, counsel control agreements with respect to each the Loan Party, substantially in the form of EXHIBIT F-2 heretoParties’ securities and investment accounts, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed Collateral Access Agreements as required by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective DateAdministrative Agent; and
(xixv) such other assurances, certificates, documents, or consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders Agent reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date Administrative Agent shall have been paid.received a Borrowing Base Certificate dated the Closing Date, relating to the fiscal month ended on January 3, 2015, and executed by a Responsible Officer of the Lead Borrower;
(c) The Borrower Borrowers shall have minimum opening Excess Availability of not less than $40,000,000 after the application of proceeds of the initial Loan and/or the issuance of the initial Letters of Credit and after provision for payment of all fees and expenses of the transaction required to be paid Attorney Costs by Borrowers on the Closing Date under the Agreement or the other Loan Documents,
(d) the Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since November 29, 2014;
(e) the Administrative Agent shall have received (i) updated projected monthly Consolidated balance sheets, income statements, statements of cash flows and availability of Borrowers and Guarantors for the period through the end of the 2015 Fiscal Year, (ii) updated projected annual Consolidated balance sheets, income statements, statements of cash flows and availability of Borrowers and Guarantors through the end of the 2019 Fiscal Year, in each case as to the projections described in clauses (i) and (ii) with the assumptions set forth in all of such projections in form and substance reasonably satisfactory to Administrative Agent, and an opening pro forma balance sheet for Borrowers and Guarantors, (iii) third party appraisals of the inventory, in form and containing assumptions and appraisal methods satisfactory to Administrative Agent and the Lead Borrower by an appraiser acceptable to Administrative Agent on which Administrative Agent and Lenders are permitted to rely, with results reasonably satisfactory to Administrative Agent (it being understood that the Borrowers shall not be obligated to reimburse Administrative Agent for the cost of any such inventory appraisal conducted prior to the Closing Date in connection with this facility), and (iv) field examinations of the business and collateral of Borrowers and Guarantors in accordance with Administrative Agent’s customary procedures and practices, with results reasonably satisfactory to Administrative Agent (it being understood that the Borrowers shall not be obligated to reimburse Administrative Agent for the cost of any such field examinations conducted prior to the Closing Date in connection with this facility), and (v) updates of customary legal due diligence, with results reasonably satisfactory to Administrative Agent;
(f) there shall be no material pending or, to Borrowers’ actual knowledge, threatened, litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to any Loan Party, the credit facility evidenced by this Agreement or the Term Loan Facility;
(g) there shall not have occurred any (i) default of any Material Contract or of any agreements evidencing any debt of any Loan Party, (ii) default under any of the Term Loan Documents or (iii) any Default or Event of Default under any of the Loan Documents;
(h) there shall be no material misstatements in or omissions from the materials previously furnished to Administrative Agent by Borrowers and Guarantors and Administrative Agent have not become aware of any material information or other matter that is inconsistent in a material and adverse manner with any previous due diligence, information or matter (including any financial information).
(i) the consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(j) the Administrative Agent shall have received reasonably satisfactory confirmation that all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior toto or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or on, to be incurred by it through the Conditions Effective Dateclosing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent) will be paid by the Borrowers concurrently with the initial Credit Extension.
(dk) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and received all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral;
(iv) such consents, estoppels, subordination agreements documentation and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as information requested by the Administrative Agent as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Act.
(l) no material changes in governmental regulations or policies affecting any Loan Party or any Lender;Credit Party shall have occurred prior to the Closing Date.
(vm) certificates evidencing all the Term Loan Facility shall have been consummated (or consummated substantially concurrently with the consummation of the issued facility evidenced by this Agreement) on terms and outstanding shares of capital stock, partnership interests, or membership interests pledged conditions and pursuant thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence to documentation reasonably satisfactory to Administrative Agent.
(n) the Closing Date shall have occurred on or before February 28, 2015 or such other date as to which the Lead Borrower and the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; may agree. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Conditions Effective Closing Date, and such notice shall be conclusive and bindingbinding on the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Stein Mart Inc)
Conditions to Initial Credit Extension. The obligation of each Lender to fund make its portion of the initial Credit Extension hereunder is subject to satisfaction (or waiver by the Administrative Agent) of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals originals, facsimiles or facsimiles other electronic copies (in each case, followed promptly by originalsoriginals if requested) and unless otherwise specified, each properly executed by an authorized officer a Responsible Officer or managing director (Geschäftsführer) of the respective German Entity of the signing Loan Party, each dated the Conditions Effective Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Date) or the Closing Date, as appropriate, and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement, the Agreement Regarding CollateralGuaranty, the GuarantiesSecurity Agreement (and intellectual property security agreements required thereunder), the Material Foreign Subsidiary Pledge Agreement and all each of the other Collateral Loan Documents each dated as of to be entered into on the Closing Date and prior to the initial Credit Extension, in any case, subject to the provisions of this Section 4.01 and together with (except as provided in the Collateral Documents and/or the provisions of this Section 4.01):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank, and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or as of Collateral Agent may deem reasonably necessary to satisfy the Conditions Effective DateCollateral and Guarantee Requirement shall have been taken, completed or otherwise provided for;
(ii) Notes a Note executed by the Borrower applicable Borrower(s) in favor of each Lender requesting such Notes, each that has requested a Note at least five (5) Business Days in a principal amount equal to such Lender's Committed Sum, each dated as advance of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates (including a certificate substantially in the form of Exhibit L), copies of Organization Documents of the Loan Parties, resolutions or other action, action and incumbency certificates and/or other certificates of officers Responsible Officers or managing directors (Geschäftsführer) of each Loan Party as Party, evidencing the Administrative Agent may require to establish the identities of and verify the identity, authority and capacity of each officer Responsible Officer or managing directors (Geschäftsführer) thereof authorized to act as a Responsible Officer or managing directors (Geschäftsführer) in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyparty or is to be a party on the Closing Date (provided that with respect to the German Entities a commercial register extract (Handelsregisterauszug), the articles of association (Gesellschaftsvertrag) and the shareholder’s list (Gesellschafterliste) shall be delivered);
(iv) such evidence as an opinion from Xxxxxxxx & Xxxxx LLP, New York counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent may reasonably require to verify that and each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organizationLender;
(v) a capacity opinion from Xxxxxxxx & Xxxxx LLP, Germany counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender;
(vi) an opinion from Dentons Luxembourg, Luxembourg counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender;
(vii) an opinion from Xxxxxx Xxxxxxx & Kent, LLP, Connecticut counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender;
(viii) a certificate signed attesting to the Solvency of the US Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transactions, from the US Borrower’s chief financial officer or other officer with equivalent duties;
(ix) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension and an associated letter of direction;
(x) copies of recent customary state level UCC lien, tax and judgment searches prior to the Closing Date with respect to the Loan Parties located in the United States; and
(xi) if available in the relevant jurisdiction, good standing certificates or certificates of status, as applicable and bring down telegrams or facsimiles, for each Loan Party.
(b) All fees and expenses required to be paid on the Closing Date hereunder or pursuant to any agreement in writing entered into by the Borrowers or by Holdings and US Borrower, to the extent, with respect to expenses, invoiced at least three (3) Business Days prior to the Closing Date, shall have been paid in full in cash or will be paid on the Closing Date out of the initial Credit Extension.
(c) Prior to or substantially simultaneously with the initial Credit Extension, (i) the Refinancing shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement.
(d) The Lead Arrangers shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) The Administrative Agent and the Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrowers and Holdings as has been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent or the Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(f) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) No Default shall exist, or would result from the proposed Credit Extension on the Closing Date or from the application of the proceeds therefrom.
(h) The Administrative Agent shall have received a certificate, dated as of the Closing Date, of a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Parties) are not less than $36,000,000Representative, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred no material adverse change in (x) the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects of the Borrower or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall be given concurrently confirming compliance with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements condition precedent set forth in CLAUSES (aSection 4.01(c), (b), (c), f) and (d) g). The making of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed initial Credit Extensions by the MarkWest Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statement; and (C) such other financial information as the Administrative Agent may request.
(viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel Lenders hereunder shall conclusively be deemed to each Loan Party and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Date; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date shall have been paid.
(c) The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested constitute an acknowledgement by the Administrative Agent or any Lender;
(v) certificates evidencing all and each Lender that each of the issued and outstanding shares of capital stockconditions precedent set forth in this Section 4.01 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person. Notwithstanding the foregoing, partnership interests, or membership interests pledged pursuant thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent extent any security interest in the Collateral is not or cannot be provided on the Closing Date (other than the pledge and perfection of security interest in (i) assets that may be perfected by the filing of a financing statement under the UCC and (ii) the Equity Interest of the US Borrower and the Domestic Subsidiaries of the US Borrower and pursuant to the Material Foreign Subsidiary Pledge Agreement after the Borrowers’ use of commercially reasonable efforts to do so without undue burden or expense (to the extent required by the definition of “Collateral and Guarantee Requirement”), then the provision and/or perfection of a security interest in such uncertificated securities has been transferred Collateral shall not constitute a condition precedent to the availability and perfected by the Administrative Agent for the benefit initial funding of the Lenders Loans on the Closing Date but may, if required, instead be delivered and/or perfected in accordance with the Uniform Commercial Code; and
(viSection 6.12(b) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and bindinghereof.
Appears in 1 contract
Samples: Credit Agreement (W R Grace & Co)
Conditions to Initial Credit Extension. The obligation of the L/C Issuer and each Revolving Credit Lender to fund make its portion of the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The satisfaction of each of the conditions to the Closing Date set forth in Section 4.01;
(b) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles copies (followed promptly by originals) and unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the any signing Loan Party, each dated the Conditions Effective Date (or, in date of the case of certificates of governmental officials, a recent date before the Conditions Effective Date) or the Closing Date, as appropriate, and each in form and substance satisfactory to the Administrative Agent and its legal counselinitial Credit Extension:
(i) executed counterparts of this Agreement, the Agreement Regarding Collateral, the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective Date;
(ii) Notes executed by the Borrower in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organization;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the MLP Offering Closing has occurred conditions specified in Section 4.03(a) and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner Section 4.03(b) have been satisfied and MarkWest Parties) are not less than $36,000,000, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred been no material adverse change in (x) event or circumstance since the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects date of the Borrower most recent Annual Financial Statements that has had or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall could be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect have, either individually or in the Borrower or any Guarantoraggregate, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documentsa Material Adverse Effect;
(viii) a certificate signed by a Financial Officer of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statement; and (C) such other financial information as the Administrative Agent may request.
(viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel to each Loan Party and attesting to the General Partner, substantially in the form Solvency of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each such Loan Party with respect before and after giving effect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering and the initial funding of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective DateCredit Extension; and
(xiiii) to the extent requested by any Revolving Credit Lender pursuant to Section 2.10(a), a Revolving Credit Note executed by the Borrower in favor of such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Any fees due and payable at the Conditions Effective Date shall have been paid.Revolving Credit Lender; and
(c) The Borrower shall have paid Attorney Costs completion of the Administrative Agent to metallurgical testwork program prescribed by the extent invoiced prior to, or on, Independent Engineer in the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary Technical Memorandum of the MLPIndependent Engineer dated September 15, and MarkWest Parent shall own at least 51% of the General Partner.
(e) Documents2011, executed by each Company that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing results of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence program being satisfactory to the Administrative Agent that the security interest (in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance consultation with the Uniform Commercial Code; and
(viIndependent Engineer) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable and incorporated into an updated Long-Term Plan delivered pursuant to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and bindingSection 6.02(b) .
Appears in 1 contract
Conditions to Initial Credit Extension. The obligation effectiveness of each Lender to fund its portion of the initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals originals, facsimiles or facsimiles electronic (pdf.) transmissions (followed promptly by originals) and unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the signing Loan PartyCompany, each dated the Conditions Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Conditions Effective Closing Date) or the Closing Date, as appropriate, and each in form and substance reasonably satisfactory to the Administrative Agent and Agent, its legal counselcounsel and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Agreement Regarding CollateralAdministrative Agent, each Lender and the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective DateCompany;
(ii) Notes executed by the Borrower Company in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers Responsible Officers of each Loan Party the Company as the Administrative Agent may require to establish evidencing the identities of and verify the identity, authority and capacity of each officer Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyDocuments;
(iv) such evidence documents and certifications as the Administrative Agent may reasonably require to verify evidence that each Loan Party the Company is duly organized or formed, and is validly existing, and in good standing in the its jurisdiction of its organization, including certified copies of the Company’s Organization Documents, and certificates of good standing;
(v) a favorable opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Company, addressed to the Administrative Agent and each Lender, in the form set forth in Exhibit H;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying Company certifying, as of the Closing Date, (A) that the MLP Offering Closing has occurred conditions specified in Sections 4.02(a) and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Partiesb) are not less than $36,000,000have been satisfied, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred been no material adverse change in (x) event or circumstance since the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects date of the Borrower Interim Financial Statements that has had or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall could be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower have, either individually or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statementaggregate, a Material Adverse Effect; and (C) such other financial information the Consolidated Leverage Ratio determined as of the Administrative Agent may request.
last day of the immediately preceding fiscal quarter (viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel on a Pro Forma Basis after giving effect to each Loan Party the USD Term Borrowing and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering EUR Term Borrowing and the initial funding use of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Dateproceeds thereof); and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(bi) Upon the reasonable request of any Lender made at least 3 days prior to the Closing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 2 days prior to the Closing Date and (ii) at least 2 days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees due and payable at required to be paid on or before the Conditions Effective Closing Date pursuant to the Loan Documents shall have been paid.
(cd) The Borrower Unless waived by the Administrative Agent, the Company shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% two Business Day prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the General Partner.
closing proceedings (e) Documents, executed by each Company provided that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent and (ii) the Administrative Agent may in its discretion waive this condition without obtaining the consent of the Required Lenders). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have requested, and received notice from such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining Lender prior to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant proposed Closing Date specifying its objection thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Initial Credit Extension. The obligation effectiveness of each Lender to fund its portion of the initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals originals, facsimiles or facsimiles electronic (pdf.) transmissions (followed promptly by originals) and unless otherwise specified, each properly executed by an authorized officer a Responsible Officer of the signing Loan PartyCompany, each dated the Conditions Effective Closing Date (or, in the 118711003_9 case of certificates of governmental officials, a recent date before the Conditions Effective Closing Date) or the Closing Date, as appropriate, and each in form and substance reasonably satisfactory to the Administrative Agent and Agent, its legal counselcounsel and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Agreement Regarding CollateralAdministrative Agent, each Lender and the Guaranties, and all other Collateral Documents each dated as of the Closing Date or as of the Conditions Effective DateCompany;
(ii) Notes executed by the Borrower Company in favor of each Lender requesting such Notes, each in a principal amount equal to such Lender's Committed Sum, each dated as of the Closing Date or as of the Conditions Effective Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers Responsible Officers of each Loan Party the Company as the Administrative Agent may require to establish evidencing the identities of and verify the identity, authority and capacity of each officer Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyDocuments;
(iv) such evidence documents and certifications as the Administrative Agent may reasonably require to verify evidence that each Loan Party the Company is duly organized or formed, and is validly existing, and in good standing in the its jurisdiction of its organization, including certified copies of the Company’s Organization Documents, and certificates of good standing;
(v) a favorable opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Company, addressed to the Administrative Agent and each Lender, in the form set forth in Exhibit H;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying Company certifying, as of the Closing Date, (A) that the MLP Offering Closing has occurred conditions specified in Sections 4.02(a) and that the gross proceeds of the sale of limited partner units (other than proceeds paid by the General Partner and MarkWest Partiesb) are not less than $36,000,000have been satisfied, (B) that the representations and warranties contained in ARTICLE V are true and correct in all respects on and as of such date, (C) that no Default or Event of Default has occurred and is continuing as of such date, (D) since December 31, 2001 there has occurred been no material adverse change in (x) event or circumstance since the business, assets, liabilities (actual or contingent), operations, or condition (financial or otherwise) or prospects date of the Borrower Interim Financial Statements that has had or any Guarantor, or (y) any of the businesses, assets or liabilities acquired or assumed or being acquired or assumed by the Borrower or any of its Subsidiaries, (E) that the Purchased Assets have been conveyed to the Borrower pursuant to the Contribution Agreement, and the Borrower and its Subsidiaries own the assets and businesses reflected on the MLP Balance Sheet free and clear of all Liens other than Permitted Liens, (F) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to SECTION 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by SECTION 6.03(c) shall could be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (G) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower, any Guarantor, the General Partner, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower have, either individually or any Guarantor, or (y) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) listing the Material Agreements and the Parent Material Agreements then in effect (which shall include those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Material Agreements and those agreements set forth in CLAUSES (a), (b), (c), and (d) of the definition of Parent Material Agreements), each of which shall be in form and substance satisfactory to the Required Lenders, and (B) attaching a copy of each of the listed Material Agreements and Parent Material Agreements, and (C) certifying that each such Material Agreement has been duly executed and is in full force and effect and each such Parent Material Agreement has been duly executed by the MarkWest Parties party thereto and is in full force and effect;
(vii) a certificate of a Responsible Officer providing copies of the following or a copy of the MLP Registration Statement containing the following (A) audited opening balance sheet for each of the MLP and the General Partner and unaudited opening balance sheet for the Borrower; (B) historical audited financial information for predecessor entities and/or businesses for the three (3) years ended December 31, 2001 as set forth in the MLP Registration Statementaggregate, a Material Adverse Effect; and (C) such other financial information the Consolidated Leverage Ratio determined as of the Administrative Agent may request.
last day of the immediately preceding fiscal quarter (viii) opinions from (A) Xxxxx Xxxxx, L.L.P., counsel on a Pro Forma Basis after giving effect to each Loan Party the USD Term Borrowing and the General Partner, substantially in the form of EXHIBIT F-3 hereto, (B) Xxxxx Xxxxxx & Xxxxxx LLP, counsel to each Loan Party, substantially in the form of EXHIBIT F-1 hereto, (C) Xxxxx Xxxxxxx, counsel to each Loan Party, substantially in the form of EXHIBIT F-2 hereto, and (D) local counsel to each Loan Party with respect to each deed of trust or mortgage executed by a Loan Party;
(ix) a letter from CT Corporation System, Inc., to accept service of process in the State of Texas on behalf of the Borrower and each Guarantor;
(x) Receipt of evidence that (a) required approvals have been obtained from the lenders under the Parent Credit Agreement and Canadian Credit Agreement, and (b) a certificate of MarkWest Parent stating that no Default or Event of Default exists under the Parent Credit Agreement or the Canadian Credit Agreement or will exist immediately after the closing of the MLP Offering EUR Term Borrowing and the initial funding use of Loans under this Agreement as such credit agreements are amended and restated on the Conditions Effective Dateproceeds thereof); and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) (i) Upon the reasonable request of any Lender made at least 3 days prior to the Closing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 2 days prior to the Closing Date and (ii) at least 2 days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees due and payable at required to be paid on or before the Conditions Effective Closing Date pursuant to the Loan Documents shall have been paid.
(cd) The Borrower Unless waived by the Administrative Agent, the Company shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Conditions Effective Date.
(d) The Borrower shall be a direct wholly-owned subsidiary of the MLP, and MarkWest Parent shall own at least 51% two Business Day prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of 118711003_9 Attorney Costs incurred or to be incurred by it through the General Partner.
closing proceedings (e) Documents, executed by each Company provided that has assets or conducts business, in appropriate form for recording, where necessary, together with:
(i) such Lien searches as estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent and (ii) the Administrative Agent may in its discretion waive this condition without obtaining the consent of the Required Lenders). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have requested, and received notice from such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens (other than Permitted Liens) in favor of any Persons;
(ii) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, or fees associated with the filing of the Mortgages or amendments to Mortgages;
(iii) evidence that the Administrative Agent has been named as loss payee under all policies of casualty insurance pertaining Lender prior to the Collateral;
(iv) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords and other Persons party to material contracts relating to any Collateral as to which the Administrative Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Administrative Agent or any Lender;
(v) certificates evidencing all of the issued and outstanding shares of capital stock, partnership interests, or membership interests pledged pursuant proposed Closing Date specifying its objection thereto, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, or, if any securities pledged pursuant thereto are uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with the Uniform Commercial Code; and
(vi) evidence that all other actions necessary or, in the opinion of the Administrative Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents (except to the extent otherwise permitted hereunder), and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; The Administrative Agent shall notify the Borrower and the Lenders of the Conditions Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
