Effectiveness of this Agreement; Closing. This Agreement will become effective, and the Closing will occur, when (i) the Administrative Agent shall have received the following documents, each dated the Closing Date unless otherwise indicated (each of the documents referred to in Sections 3.01(a) through 3.01(i) to be in form and substance reasonably satisfactory to the Administrative Agent and each Lender), and (ii) the other conditions specified below shall have been satisfied: (a) with respect to each party listed on the signature pages hereof, either a counterpart of this Agreement signed by such party or facsimile or other written confirmation satisfactory to the Administrative Agent that such party has signed a counterpart hereof; (b) a duly executed Note complying with the provisions of Section 2.04 for the account of each Lender; (c) a duly executed Swingline Note complying with the provisions of Section 2.08(d) for the account of the Swingline Bank; (d) a counterpart of the Subsidiary Guaranty Agreement signed by each Restricted Subsidiary; (e) a counterpart of the Vencor Guaranty Agreement signed by Vencor; (f) a counterpart of the Security Agreement, signed by Vencor, the Borrower and each Restricted Subsidiary, together with (to the extent not already held by Xxxxxx in its capacity as collateral agent under the Pre-Petition Senior Credit Agreement and DIP Facility) certificates evidencing all the certificated Equity Interests listed in Schedule 1 hereto (other than Equity Interests held in Vencor, Cornerstone or any Excluded Partnership) and signed stock powers or other appropriate instruments of transfer relating thereto; (g) a counterpart of the Intercreditor Agreement signed by each of the parties thereto; (h) a signed counterpart of a Fee Mortgage with respect to each Owned Property in proper form for recording in the relevant jurisdictions, together with evidence reasonably satisfactory to the Collateral Agent that such Fee Mortgages will be recorded on or promptly after the Closing Date, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording; (i) a signed counterpart of a Leasehold Mortgage with respect to the lease of each of the Initial Master Lease Properties and each of the Other Leased Properties, together with evidence satisfactory to the Collateral Agent that such Leasehold Mortgages will be recorded on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording; (j) receipt by the Collateral Agent of lender's title insurance policies in an aggregate amount equal to $120 million with respect to the Mortgages, such policies to be in form and substance reasonably satisfactory to the Collateral Agent; (k) all signed UCC financing statements reasonably requested by the Collateral Agent to perfect its security interests in the Collateral and evidence satisfactory to the Collateral Agent that such UCC financing statements will be filed on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related filing fees or similar charges or taxes will be paid in connection with such filing; (l) a counterpart of each Master Lease Agreement signed by each of the parties thereto, together with evidence satisfactory to the Collateral Agent that appropriate memoranda of lease will be recorded on or promptly after the Closing Date with respect to each of the Initial Master Lease Properties, as required to protect the rights of the Borrower as lessee thereof against third parties; the Master Lease Agreements as so executed shall be consistent in all material respects with the form thereof marked as an exhibit in connection with the confirmation hearing before the Court on March 1, 2001 (the "Confirmation Hearing"); (m) a counterpart of the Senior Secured Credit Agreement and of each security and guaranty agreement entered into in connection therewith; each such agreement shall be consistent in all material respects with the drafts thereof marked as exhibits in connection with the Confirmation Hearing; (n) (i) the Confirmation Order, as entered on the Court's docket on March 19, 2001, shall not have been amended or modified in any way that (A) in the reasonable judgment of the Required Lenders, materially adversely affects their interests or rights or the business or financial prospects of the Borrower and its Restricted Subsidiaries or (B) in the reasonable judgment of the Collateral Monitoring Agent, exercised in good faith, materially adversely affects the Collateral to be pledged to the Lenders pursuant to the Collateral Documents (including, without limitation, the value of such Collateral, the Liens granted for the benefit of the Agents and the Lenders with respect to such Collateral or the rights and remedies of the secured parties with respect thereto), (ii) no appeal of the Confirmation Order shall have been taken or, if any appeal has been taken, no stay of the Confirmation Order pending appeal shall be in effect and (iii) the Confirmation Order shall not provide that the Court's retention of jurisdiction thereunder governs the enforcement of the Financing Documents or any of the rights or remedies of the Lenders or the Agents related thereto, other than in any respect consented to by the Required Lenders and the Collateral Monitoring Agent; (o) the Effective Date of the Plan of Reorganization shall have occurred, and all conditions precedent thereto (including termination of the commitments under the DIP Facility and payment in full of all amounts owing by Vencor or any of its Subsidiaries thereunder) shall have been satisfied as set forth in the Plan of Reorganization (or, with the prior consent of the Required Lenders, waived); (p) all fees and expenses (including but not limited to reasonable fees and expenses of counsel) required to be paid to the Administrative Agent on or before the Closing Date shall have been paid; (q) the Administrative Agent shall not have received notice from any Lender that, in its reasonable judgment, it is not satisfied that upon the occurrence of the Closing there shall not occur or be in existence a default (or any event which with the giving of notice or lapse of time or both would be a default) under this Agreement, the Senior Secured Credit Agreement, any Master Lease Agreement, the PIP Claim or any other material agreements; (r) opinions of (i)(A) the General Counsel of Vencor and the Borrower, substantially in the form of Exhibit F-1 hereto and (B) the Vice President of Corporate Legal Affairs of Vencor and the Borrower, substantially in the form of Exhibit F-2 hereto, (ii) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel for Vencor and the Borrower, substantially in the form of Exhibit G hereto, (iii) Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel for Vencor and the Borrower, substantially in the form of Exhibit H hereto and (iv) each local real estate counsel listed on Schedule 7 hereto, subsequently in the form of Exhibit I hereto; (s) all necessary governmental and third party consents and approvals necessary in connection with the effectiveness of the Plan of Reorganization and the transactions contemplated by the Financing Documents shall have been obtained (without the imposition of any conditions that, in the reasonable judgment of the Required Lenders, have had or would reasonably be expected to have a Material Adverse Effect) and shall remain in effect, and all requisite governmental filings necessary in connection therewith have been made and all applicable waiting periods shall have expired without in either case any action being taken by any competent authority, except in any case or in all cases in the aggregate such that the failure to have been obtained or made would not reasonably be expected to have a Material Adverse Effect; (t) no event or condition which has had or is reasonably likely to have a Material Adverse Effect shall have occurred; (u) there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; (v) copies of personal property Lien and tax and judgment Lien searches received by the Borrower prior to the Closing Date with respect to personal, real and mixed properties of the Borrower and the Guarantors, which shall not reveal the existence of any Liens on such properties other than (i) Permitted Liens or (ii) Liens as to which the Administrative Agent has received evidence satisfactory that the obligations secured by such Liens have been fully and finally discharged on or prior to the Closing Date; (w) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a certificate from an appropriate officer of each of the Credit Parties (i) attaching copies of the Organizational Documents of such Credit Party and copies of resolutions or consents of the board of directors of such Credit Party or of its applicable partner or member authorizing the applicable Financing Documents and the other transactions contemplated hereby, and (ii) certifying (A) that such copies are true, correct and complete copies thereof and that such resolutions and Organizational Documents are in full force and effect as of the Closing Date and have been duly adopted in accordance with the Organizational Documents of such Credit Party, and (B) as to the signatures and incumbency of the Persons executing Financing Documents on behalf of such Credit Party; (x) a completed Borrowing Base Certificate dated as of February 28, 2001 and signed by a Financial Officer; and (y) all other documents that the Administrative Agent may reasonably request relating to the existence of the Credit Parties, the corporate or other authority for and the validity of the Financing Documents, the creation and perfection of the Liens contemplated by the Collateral Documents and any other matters relevant thereto, all in form and substance satisfactory to the Administrative Agent. Promptly after the Closing occurs, the Administrative Agent shall notify the Borrower, the other Agents and the Lenders thereof, and such notice shall be conclusive and binding on all parties hereto. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.05(b)) before 5:00 pm., Eastern Time, on May 1, 2001 (and, if any such condition is not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Effectiveness of this Agreement; Closing. This Agreement will become effective, and the Closing will occur, when (i) the Administrative Agent shall have received the following documents, each dated the Closing Date unless otherwise indicated (each of the documents referred to in Sections 3.01(a) through 3.01(i) to be in form and substance reasonably satisfactory to the Administrative Agent and each Lender)indicated, and (ii) the other conditions specified below shall have been satisfied:
(a) with respect to each party listed on the signature pages hereof, either a counterpart of this Agreement signed by such party or facsimile or other written confirmation satisfactory to the Administrative Agent that such party has signed a counterpart hereof;
(b) a duly executed Note complying with the provisions of Section 2.04 for the account of Section
2.01 payable to each Lender;
(c) a duly executed Swingline Note complying with the provisions of Section 2.08(d) for the account of the Swingline Bank;
(d) a counterpart of the Subsidiary Guaranty Agreement signed by each Restricted Subsidiary;
(ed) a counterpart of the Vencor Guaranty Agreement signed by Vencor;
(fe) a counterpart of the Security Agreement, signed by Vencor, the Borrower Issuer and each Restricted Subsidiary, together with (to the extent not already held by Xxxxxx in its capacity as collateral agent under the Pre-Petition Senior Credit Agreement and DIP Facility) certificates evidencing all the certificated Equity Interests listed in Schedule 1 hereto (other than Equity Interests held in Vencor, Cornerstone or any Excluded Partnership) and signed stock powers or other appropriate instruments of transfer relating thereto;
(gf) a counterpart of the Intercreditor Agreement signed by each of the parties thereto;
(hg) a signed counterpart of a Fee Mortgage with respect to each Owned Property in proper form for recording in the relevant jurisdictions, together with evidence reasonably satisfactory to the Collateral Agent that such Fee Mortgages will be recorded on or promptly after the Closing Date, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording;
(ih) a signed counterpart of a Leasehold Mortgage with respect to the lease of each of the Initial Master Lease Properties and each of the Other Leased Properties, together with evidence satisfactory to the Collateral Agent that such Leasehold Mortgages will be recorded on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording;
(ji) receipt by the Collateral Agent of lender's title insurance policies in an aggregate amount equal to $120 million with respect to the Mortgages, such policies to be in form and substance reasonably satisfactory to the Collateral Agent;
(kj) all signed UCC financing statements reasonably requested by the Collateral Agent to perfect its security interests in the Collateral and evidence satisfactory to the Collateral Agent that such UCC financing statements will be filed on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related filing fees or similar charges or taxes will be paid in connection with such filing;
(lk) a counterpart of each Master Lease Agreement signed by each of the parties thereto, together with evidence satisfactory to the Collateral Agent that appropriate memoranda of lease will be recorded on or promptly after the Closing Date with respect to each of the Initial Master Lease Properties, as required to protect the rights of the Borrower Issuer as lessee thereof against third parties; the Master Lease Agreements as so executed shall be consistent in all material respects with the form thereof marked as an exhibit in connection with the confirmation hearing before the Court on March 1, 2001 (the "Confirmation Hearing")200l;
(m) a counterpart of the Senior Secured Credit Agreement and of each security and guaranty agreement entered into in connection therewith; each such agreement shall be consistent in all material respects with the drafts thereof marked as exhibits in connection with the Confirmation Hearing;
(n) (il) the Confirmation Order, as entered on the Court's docket on March 19, 2001, shall not have been amended or modified in any way that (A) that, in the reasonable judgment of the Required Lenders, materially adversely affects their interests or rights or the business or financial prospects of the Borrower Issuer and its Restricted Subsidiaries or (B) in the reasonable judgment of the Collateral Monitoring Agent, exercised in good faith, materially adversely affects the Collateral to be pledged to the Lenders pursuant to the Collateral Documents (including, without limitation, the value of such Collateral, the Liens granted for the benefit of the Agents and the Lenders with respect to such Collateral or the rights and remedies of the secured parties with respect thereto), (ii) no appeal of the Confirmation Order shall have been taken or, if any appeal has been taken, no stay of the Confirmation Order pending appeal shall be in effect and (iii) effect; the Confirmation Order shall not provide that the Court's retention of jurisdiction thereunder governs the enforcement of the Financing Documents or any of the rights or remedies of the Lenders or the Agents related thereto, other than in any respect consented to by the Required Lenders and the Collateral Monitoring AgentLenders;
(om) the Effective Date of the Plan of Reorganization shall have occurred, and all conditions precedent thereto (including termination of the commitments under the DIP Facility and payment in full of all amounts owing by Vencor or any of its Subsidiaries thereunder) shall have been satisfied as set forth in the Plan of Reorganization (or, with the prior consent of the Required Lenders, waived);
(pn) all fees and expenses (including but not limited to reasonable fees and expenses of counsel) required to be paid to the Administrative Agent on or before the Closing Date shall have been paid;
(q) the Administrative Agent shall not have received notice from any Lender that, in its reasonable judgment, it is not satisfied that upon the occurrence of the Closing there shall not occur or be in existence a default (or any event which with the giving of notice or lapse of time or both would be a default) under this Agreement, the Senior Secured Credit Agreement, any Master Lease Agreement, the PIP Claim or any other material agreements;
(ro) opinions of (i)(A) the General Counsel of Vencor and the BorrowerIssuer, substantially in the form of Exhibit F-1 F-l hereto and (B) the Vice President of Corporate Legal Affairs of Vencor and the BorrowerIssuer, substantially in the form of Exhibit F-2 hereto, (ii) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel for Vencor and the BorrowerIssuer, substantially in the form of Exhibit G hereto, (iii) Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel for Vencor and the BorrowerIssuer, substantially in the form of Exhibit H hereto and (iv) each local real estate counsel listed on Schedule 7 hereto, subsequently substantially in the form of Exhibit I hereto;
(sp) all necessary governmental and third party consents and approvals necessary in connection with the effectiveness of the Plan of Reorganization and the transactions contemplated by the Financing Documents shall have been obtained (without the imposition of any conditions that, in the reasonable judgment of the Required Lenders, have had or that would reasonably be expected to have a Material Adverse Effect) and shall remain in effect, and all requisite governmental filings necessary in connection therewith have been made and all applicable waiting periods shall have expired without in either case any action being taken by any competent authority, except in any case or in all cases in the aggregate such that the failure to have been obtained or made would not reasonably be expected to have a Material Adverse Effect;
(tq) no event or condition which has had or is reasonably likely to have a Material Adverse Effect shall have occurred;
(ur) there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;:
(vs) copies of personal property Lien and tax and judgment Lien searches received by the Borrower Issuer prior to the Closing Date with respect to personal, real and mixed properties of the Borrower Issuer and the Guarantors, which shall not reveal the existence of any Liens on such properties other than (i) Permitted Liens or (ii) Liens as to which the Administrative Agent has received evidence satisfactory that the obligations secured by such Liens have been fully and finally discharged on or prior to the Closing Date;
(w) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a certificate from an appropriate officer of each of the Credit Parties (i) attaching copies of the Organizational Documents of such Credit Party and copies of resolutions or consents of the board of directors of such Credit Party or of its applicable partner or member authorizing the applicable Financing Documents and the other transactions contemplated hereby, and (ii) certifying (A) that such copies are true, correct and complete copies thereof and that such resolutions and Organizational Documents are in full force and effect as of the Closing Date and have been duly adopted in accordance with the Organizational Documents of such Credit Party, and (B) as to the signatures and incumbency of the Persons executing Financing Documents on behalf of such Credit Party;
(x) a completed Borrowing Base Certificate dated as of February 28, 2001 and signed by a Financial Officer; and
(yt) all other documents that the Administrative Agent may reasonably request relating to the existence of the Credit Parties, the corporate or other authority for and the validity of the Financing Documents, the creation and perfection of the Liens contemplated by the Collateral Documents and any other matters relevant thereto, all in form and substance satisfactory to the Administrative Agent. Promptly after the Closing occurs, the Administrative Agent shall notify the Borrower, the other Agents Issuer and the Lenders thereof, and such notice shall be conclusive and binding on all parties hereto. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.05(b)) before 5:00 pm., Eastern Time, on May 1, 2001 (and, if any such condition is not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Effectiveness of this Agreement; Closing. This The Initial Credit Agreement will become effective, and the Closing will occur, shall be amended to read in full as this Amended Agreement reads when (i) the Administrative Documentation Agent shall have received the following documents, each dated the Closing Amendment Effective Date unless otherwise indicated (each of the documents referred to in Sections 3.01(a) through 3.01(i) to be in form and substance reasonably satisfactory to the Administrative Agent and each Lender)indicated, and (ii) the other conditions specified below shall have been satisfied:
(a) with respect to a counterpart hereof signed by each party listed on the signature pages hereof, either a counterpart of this Agreement signed by such party hereof or facsimile or other written confirmation satisfactory to the Administrative Documentation Agent that each such party has signed a counterpart hereof;
(b) a duly executed Note for the account of each Bank complying with the provisions of Section 2.04 for the account of each Lender2.05;
(c) a duly executed Swingline Note complying with the provisions of Section 2.08(d) 2.09 for the account of the Swingline Bank;
(d) a counterpart of a Subsidiary Guaranty Agreement signed by TheraTx and by each Subsidiary of TheraTx listed in Parts III, IV and V of Schedule IV hereto (the Documentation Agent having received on the Initial Closing Date a duly executed counterpart of a Subsidiary Guaranty Agreement signed by each Restricted SubsidiarySubsidiary of Vencor listed in Parts I and II of Schedule IV hereto, except TheraTx and Atria);
(e) a counterpart of the Vencor Guaranty Agreement signed by Vencor;
(f) a counterpart of the Security Agreement, signed by Vencoras amended to be substantially in the form of Exhibit C hereto, the Borrower and each Restricted Subsidiary, together with (to the extent not already held by Xxxxxx in its capacity as collateral agent under the Pre-Petition Senior Credit Agreement and DIP Facility) certificates evidencing all the certificated Equity Interests listed in Schedule 1 hereto (other than Equity Interests held in Vencor, Cornerstone or any Excluded Partnership) and signed stock powers or other appropriate instruments of transfer relating thereto;
(g) a counterpart of the Intercreditor Agreement signed by each of the parties theretolisted on the signature pages thereof and Security Agreement Supplements signed by TheraTx, PersonaCare, Inc., PersonaCare of Connecticut, Inc., Horizon Healthcare Services, Inc., Stamford Health Facilities, Inc., PersonaCare of Rhode Island, Inc. and Care Venture Partners, L.P., together with stock certificates evidencing the capital stock listed in Parts III, IV, V and VI of Schedule IV hereto 57 and signed stock powers relating thereto (the Documentation Agent having received on the Initial Closing Date (i) stock certificates evidencing the capital stock listed in Parts I and II of Schedule IV hereto and signed stock powers relating thereto and (ii) the instruments listed in Schedule V hereto);
(h) a signed counterpart of a Fee Mortgage with respect to each Owned Property in proper form for recording in the relevant jurisdictions, together with evidence reasonably satisfactory to the Collateral Agent that such Fee Mortgages will be recorded on or promptly after the Closing Date, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording;
(i) a signed counterpart of a Leasehold Mortgage with respect to the lease of each of the Initial Master Lease Properties and each of the Other Leased Properties, together with evidence satisfactory to the Collateral Agent that such Leasehold Mortgages will be recorded on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording;
(j) receipt by the Collateral Agent of lender's title insurance policies in an aggregate amount equal to $120 million with respect to the Mortgages, such policies to be in form and substance reasonably satisfactory to the Collateral Agent;
(kf) all signed UCC financing statements reasonably requested by the Collateral Agent to perfect its security interests in the Collateral and evidence satisfactory to the Collateral Documentation Agent that arrangements satisfactory to it have been made for filing such UCC financing statements will be filed on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related filing fees or similar charges or taxes will be paid in connection with such filingAmendment Effective Date;
(lg) a counterpart of each Master Lease Agreement signed by each of the parties thereto, together with evidence satisfactory to the Collateral Documentation Agent that appropriate memoranda of lease that, on the Amendment Effective Date, Vencor will be recorded on or promptly after the Closing Date with respect to each of pay in full all loans and reimbursement obligations then outstanding under the Initial Master Lease PropertiesCredit Agreement, as required and all interest and fees accrued to protect but excluding the rights of the Borrower as lessee thereof against third parties; the Master Lease Agreements as so executed shall be consistent in all material respects with the form thereof marked as an exhibit in connection with the confirmation hearing before the Court on March 1, 2001 (the "Confirmation Hearing")Amendment Effective Date thereunder;
(m) a counterpart of the Senior Secured Credit Agreement and of each security and guaranty agreement entered into in connection therewith; each such agreement shall be consistent in all material respects with the drafts thereof marked as exhibits in connection with the Confirmation Hearing;
(n) (ih) the Confirmation Order, as entered on the Court's docket on March 19, 2001, shall not have been amended or modified in any way that (A) in the reasonable judgment of the Required Lenders, materially adversely affects their interests or rights or the business or financial prospects of the Borrower and its Restricted Subsidiaries or (B) in the reasonable judgment of the Collateral Monitoring Agent, exercised in good faith, materially adversely affects the Collateral to be pledged to the Lenders pursuant to the Collateral Documents (including, without limitation, the value of such Collateral, the Liens granted for the benefit of the Agents and the Lenders with respect to such Collateral or the rights and remedies of the secured parties with respect thereto), (ii) no appeal of the Confirmation Order shall have been taken or, if any appeal has been taken, no stay of the Confirmation Order pending appeal shall be in effect and (iii) the Confirmation Order shall not provide that the Court's retention of jurisdiction thereunder governs the enforcement of the Financing Documents or any of the rights or remedies of the Lenders or the Agents related thereto, other than in any respect consented to by the Required Lenders and the Collateral Monitoring Agent;
(o) the Effective Date of the Plan of Reorganization shall have occurred, and all conditions precedent thereto (including termination of the commitments under the DIP Facility and payment in full of all amounts owing by Vencor or any of its Subsidiaries thereunder) shall have been satisfied as set forth in the Plan of Reorganization (or, with the prior consent of the Required Lenders, waived);
(p) all fees and expenses (including but not limited to reasonable fees and expenses of counsel) required to be paid to the Administrative Agent on or before the Closing Date shall have been paid;
(q) the Administrative Documentation Agent shall not have received notice from the Required Banks stating that they have determined in good faith that (i) any Lender thataction, suit or proceeding is pending or threatened against any Vencor Company in its which there is a reasonable judgmentpossibility of an adverse decision which would have a Material Adverse Effect or (ii) since December 31, it is not satisfied that upon the occurrence of the Closing there shall not occur or be in existence a default (1996 any event has occurred or any event condition has come into existence which with the giving of notice has had, or lapse of time or both would be is reasonably likely to have, a default) under this Agreement, the Senior Secured Credit Agreement, any Master Lease Agreement, the PIP Claim or any other material agreementsMaterial Adverse Effect;
(ri) opinions a properly completed Federal Reserve Form FR U-1 for each Bank signed by Vencor;
(j) evidence satisfactory to the Documentation Agent that, since December 31, 1996, none of the Combined Companies (i)(Ai) declared or paid any dividend or made any other distribution on any Equity Securities of Vencor or TheraTx, (ii) entered into any Guarantee of Debt of any Minority-Owned Affiliate, (iii) made any payment on account of the purchase, redemption, retirement or acquisition of any Equity Securities of Vencor or TheraTx, except payments pursuant to and described in the Tender Offer and the Merger Agreement or (iv) made any Investment in any Minority-Owned Affiliate, except payments made pursuant to Guarantees of Debt of Minority-Owned Affiliates entered into before December 31, 1996;
(k) evidence satisfactory to the Documentation Agent and the Administrative Agent that Vencor has paid or will pay on the Amendment Effective Date all fees, expenses and other amounts payable by Vencor on or before the Amendment Effective Date to the Agents and the Banks in connection with this Agreement;
(l) an opinion of Xxxx X. Force, General Counsel of Vencor and the BorrowerVencor, substantially in the form of Exhibit F-1 hereto and E hereto;
(Bm) the Vice President an opinion of Corporate Legal Affairs Xxxxxxxx X. Xxxxx, General Counsel of Vencor and the BorrowerTheraTx, substantially in the form of Exhibit F-2 F hereto, ;
(iin) Cleary, Gottlieb, an opinion of Xxxxx Xxxxxx & XxxxxxxxXxxxx, special counsel for Vencor and the BorrowerVencor, substantially in the form of Exhibit G hereto, ;
(iiio) Morris, Nichols, Arsht an opinion of Xxxxx Xxxx & XxxxxxxXxxxxxxx, special Delaware counsel for Vencor and the BorrowerAgents, substantially in the form of Exhibit H hereto and (iv) each local real estate counsel listed on Schedule 7 hereto, subsequently in the form of Exhibit I hereto;
(sp) all necessary governmental and third party approvals, consents and approvals necessary other actions by or in respect of, or filings with, any governmental body, agency, official, authority or other Person required in connection with the effectiveness of the Plan of Reorganization and the transactions contemplated by the Financing Documents shall have been obtained obtained, taken or made (without the imposition of except for any conditions thatsuch approvals, in the reasonable judgment of the Required Lendersconsents, have had actions or would reasonably be expected filings with any Person (other than any governmental body, agency, official or authority) as to have a Material Adverse Effect) and shall remain in effect, and all requisite governmental filings necessary in connection therewith have been made and all applicable waiting periods shall have expired without in either case any action being taken by any competent authority, except in any case or in all cases in the aggregate such that which the failure to have been obtained obtained, taken or made would not reasonably be expected to have a Material Adverse Effect;
(t) no event or condition which has had or them is reasonably likely to have a Material Adverse Effect shall have occurred;
(u) there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(v) copies of personal property Lien and tax and judgment Lien searches received by the Borrower prior to the Closing Date with respect to personal, real and mixed properties of the Borrower and the Guarantors, which shall not reveal the existence of any Liens on such properties other than (i) Permitted Liens or (ii) Liens as to which the Administrative Agent has received evidence satisfactory that the obligations secured by such Liens have been fully and finally discharged on or prior to the Closing Date;
(w) the Administrative Agent shall have receivednot, in form and substance reasonably satisfactory to the Administrative Agentaggregate, a certificate from an appropriate officer of each of the Credit Parties (i) attaching copies of the Organizational Documents of such Credit Party and copies of resolutions or consents of the board of directors of such Credit Party or of its applicable partner or member authorizing the applicable Financing Documents and the other transactions contemplated hereby, and (ii) certifying (A) that such copies are true, correct and complete copies thereof and that such resolutions and Organizational Documents are in full force and effect as of the Closing Date and have been duly adopted in accordance with the Organizational Documents of such Credit Party, and (B) as to the signatures and incumbency of the Persons executing Financing Documents on behalf of such Credit Party;
(x) a completed Borrowing Base Certificate dated as of February 28, 2001 and signed by a Financial Officermaterial); and
(yq) all other documents that the Administrative Documentation Agent may reasonably request relating to the existence of the Credit PartiesVencor Companies, the corporate or other authority for and the validity of the Financing Documents, the creation and perfection of the Liens contemplated by the Collateral Documents and any other matters relevant thereto, all in form and substance satisfactory to the Administrative Documentation Agent. Promptly after the Closing closing hereunder occurs, the Documentation Agent shall notify Vencor, the Administrative Agent shall notify the Borrower, the other Agents and the Lenders thereofBanks of the Amendment Effective Date, and such notice shall be conclusive and binding on all parties hereto. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.05(b)) before 5:00 pm., Eastern Time, on May 1, 2001 (and, if any such condition is not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Samples: Credit Agreement (Vencor Inc)
Effectiveness of this Agreement; Closing. This ---------------------------------------- Agreement will become effective, and the Closing will occur, when (i) the Administrative Agent Agents shall have received the following documents, each dated the Closing Date unless otherwise indicated (each of the documents referred to in Sections 3.01(a) through 3.01(i) to be in form and substance reasonably satisfactory to the Administrative Agent and each Lender)indicated, and (ii) the other conditions specified below shall have been satisfiedsatisfied or waived in accordance with the terms hereof:
(a) with respect to each party listed on the signature pages hereof, either a counterpart of this Agreement signed by such party or facsimile or other written confirmation satisfactory to the Administrative Agent that such party has signed a counterpart hereof;
(b) a duly executed Tranche A Note and a duly executed Tranche B Note complying with the provisions of Section 2.04 for the account of 2.03 payable to each Lender;
(c) a duly executed Swingline Note complying with the provisions of Section 2.08(d) for the account of the Swingline Bank;
(d) a counterpart of the Subsidiary Guaranty Agreement signed by each Restricted Subsidiary;
(e) a counterpart of the Vencor Guaranty Agreement signed by Vencor;
(f) a counterpart of the Security Agreement, signed by Vencor, each of the Borrower and each Restricted SubsidiaryBorrowers, together with (to the extent not already held by Xxxxxx previously delivered to Collateral Agent in its capacity as collateral agent under the Pre-Petition Senior Existing Credit Agreement and DIP FacilityFacilities) certificates evidencing all the certificated Equity Interests listed in Schedule 1 3 hereto (other than Equity Interests held in Vencor, Cornerstone or any Excluded Partnership) and signed stock powers or other ---------- appropriate instruments of transfer relating thereto;
(g) a counterpart of the Intercreditor Agreement signed by each of the parties thereto;
(h) a signed counterpart of a Fee Mortgage with respect to each Owned Property in proper form for recording in the relevant jurisdictions, together with evidence reasonably satisfactory to the Collateral Agent that such Fee Mortgages will be recorded on or promptly after the Closing Date, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording;
(i) a signed counterpart of a Leasehold Mortgage with respect to the lease of each of the Initial Master Lease Properties and each of the Other Leased Properties, together with evidence satisfactory to the Collateral Agent that such Leasehold Mortgages will be recorded on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related intangibles, mortgage recording (if any) or similar taxes will be paid in connection with such recording;
(j) receipt by the Collateral Agent of lender's title insurance policies in an aggregate amount equal to $120 million with respect to the Mortgages, such policies to be in form and substance reasonably satisfactory to the Collateral Agent;
(kd) all signed UCC financing statements reasonably requested by the Collateral Agent to perfect its security interests in the Collateral;
(e) to the extent received by the Collateral Agent on or prior to the Closing Date, the results of Lien and evidence tax and judgment Lien searches with respect to the personal, mixed and real properties of the Borrowers in the jurisdictions and with the scope requested by the Collateral Agent, which results shall be satisfactory to the Collateral Agent that such UCC financing statements will be filed on or promptly after the Closing Date or as otherwise agreed by the Collateral Agent pursuant to the Escrow Agreement, and any related filing fees or similar charges or taxes will be paid in connection with such filing;
(l) a counterpart of each Master Lease Agreement signed by each of the parties thereto, together with evidence satisfactory to the Collateral Agent that appropriate memoranda of lease will be recorded on or promptly after the Closing Date with respect to each of the Initial Master Lease Properties, as required to protect the rights of the Borrower as lessee thereof against third parties; the Master Lease Agreements as so executed shall be consistent in all material respects with the form thereof marked as an exhibit in connection with the confirmation hearing before the Court on March 1, 2001 (the "Confirmation Hearing");
(m) a counterpart of the Senior Secured Credit Agreement and of each security and guaranty agreement entered into in connection therewith; each such agreement shall be consistent in all material respects with the drafts thereof marked as exhibits in connection with the Confirmation Hearing;
(n) (i) the Confirmation Order, as entered on the Court's docket on March 19, 2001, shall not have been amended or modified in any way that (A) in the reasonable judgment of the Required Lenders, materially adversely affects their interests or rights or the business or financial prospects of the Borrower and its Restricted Subsidiaries or (B) in the reasonable judgment of the Collateral Monitoring Agent, exercised in good faith, materially adversely affects the Collateral to be pledged to the Lenders pursuant to the Collateral Documents (including, without limitation, the value of such Collateral, the Liens granted for the benefit of the Agents and the Lenders with respect to such Collateral or the rights and remedies of the secured parties with respect thereto), (ii) no appeal of the Confirmation Order shall have been taken or, if any appeal has been taken, no stay of the Confirmation Order pending appeal shall be in effect and (iii) the Confirmation Order shall not provide that the Court's retention of jurisdiction thereunder governs the enforcement of the Financing Documents or any of the rights or remedies of the Lenders or the Agents related thereto, other than in any respect consented to by the Required Lenders and the Collateral Monitoring Agent;
(of) the Effective Date written wire transfer instructions signed by MHG on behalf of the Plan Borrowers and in form and substance satisfactory to the Administrative Agent for application of Reorganization shall have occurredthe proceeds of the initial Borrowing hereunder on the date of initial Borrowing, including providing for the payment on the date of initial Borrowing of (1) all fees, expenses and other amounts payable by the Borrowers on or before such date to the Agents, Co-Arrangers and the Lenders in connection with this Agreement, and all conditions precedent thereto (including termination of the commitments under the DIP Facility and payment in full of all amounts owing by Vencor or any of its Subsidiaries thereunder) shall have been satisfied as set forth in the Plan of Reorganization (or, with the prior consent of the Required Lenders, waived);
(p2) all fees and expenses of each counsel and advisor to the Agents, the Lenders and the Existing Lenders in connection with this Agreement, the Existing Credit Facilities, the Existing Notes and the transactions contemplated thereby (including but not limited without limitation O'Melveny & Xxxxx LLP, counsel to reasonable fees the Agents, Lenders and expenses of counsel) required to be paid Existing Lenders, Xxxxxxxx Ingersoll, P.C., special counsel to the Administrative Agent on or before and the Closing Date shall have been paidadministrative agent under the Existing Credit Facilities, Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., special counsel to the Syndication Agent and the syndication agent under the Existing Credit Facilities, Xxxxxxxx Xxxxx Xxxxxx & Xxxxx and Care Consulting, L.L.C.), incurred and invoiced but not yet paid through the Petition Date;
(qg) the Administrative Agent shall not have received notice from any Lender thatan opinion of Powell, in its reasonable judgmentGoldstein, it is not satisfied that upon the occurrence of the Closing there shall not occur or be in existence a default (or any event which with the giving of notice or lapse of time or both would be a default) under this Agreement, the Senior Secured Credit Agreement, any Master Lease Agreement, the PIP Claim or any other material agreements;
(r) opinions of (i)(A) the General Counsel of Vencor and the Borrower, substantially in the form of Exhibit F-1 hereto and (B) the Vice President of Corporate Legal Affairs of Vencor and the Borrower, substantially in the form of Exhibit F-2 hereto, (ii) Cleary, Gottlieb, Xxxxx Xxxxxx & XxxxxxxxXxxxxx LLP, special counsel for Vencor and the Borrower, substantially in the form of Exhibit G hereto, (iii) Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel for Vencor and the BorrowerBorrowers, substantially in the form of Exhibit H hereto --------- (and (iv) each local real estate Borrowers hereby request such counsel listed on Schedule 7 hereto, subsequently in the form of Exhibit I heretoto deliver such opinions to Lenders);
(sh) all necessary governmental and third party approvals, consents and approvals necessary other actions by or in respect of, or filings with, any governmental body, agency, official, authority or other Person (including stockholders) required in connection with the effectiveness of the Plan of Reorganization and the transactions contemplated by the Financing Documents shall have been obtained obtained, taken or made (without except for any such approvals, consents, actions or filings with any Person (other than any governmental body, agency, official or authority) (1) as to which the imposition of any conditions thatfailure to have obtained, taken or made them is not, in the aggregate, material or (2) which have been rendered unnecessary, in the reasonable judgment of the Agents, due to the entry of the Interim Borrowing Order);
(i) the Interim Borrowing Order (or if there is no Interim Borrowing Order, the Borrowing Order) shall have been entered by the Court;
(j) no pleading, application or objection sought by any party in interest (including any Existing Lender) shall have been filed with and granted by the Court (or shall have been filed with the Court by or on behalf of an official committee of creditors) which has not been withdrawn, stayed, dismissed or denied seeking (i) to dismiss or convert any of the Chapter 11 Cases to cases under Chapter 7 of the Bankruptcy Code, (ii) the appointment of a Chapter 11 trustee in any of the Chapter 11 Cases or of a trustee of any Borrower under Chapter 7, (iii) the appointment of an examiner (with expanded powers beyond those set forth in Sections 1106(a)(3) and (4) of the Bankruptcy Code) for any Borrower under Section 1106(b) of the Bankruptcy Code, (iv) the granting of an administrative expense or priority claim or a Lien in either case pari passu or senior to that of the Collateral Agent granted pursuant to the Collateral Documents, the Interim Borrowing Order and the Borrowing Order, other than the Carve- Out, (v) to stay, reverse, vacate, or otherwise modify the Interim Borrowing Order or the Borrowing Order without the prior written consent of the Agents and Required Lenders, have had or would reasonably be expected (vi) relief from the automatic stay (or any other injunction having similar effect) so as to have allow a Material Adverse Effect) and shall remain in effect, and all requisite governmental filings necessary in connection therewith have been made and all applicable waiting periods shall have expired without in either case third party to proceed against any action being taken property or assets of the Borrowers deemed material by any competent authority, except in any case or in all cases in the aggregate such that the failure to have been obtained or made would not reasonably be expected to have a Material Adverse EffectAgents;
(tk) all First Day Orders shall be in form and substance satisfactory to the Agents, and the Agents shall have received copies of all orders, if any, entered by the United States Bankruptcy Court in the bankruptcy cases of MPAN as a result of motions and applications filed by the relevant debtors with such court on the relevant petition date;
(l) since the date of the Most Recent Audited Financial Statements, no event or condition which has had or is reasonably likely to have a Material Adverse Effect (in the sole opinion of Required Lenders) shall have occurred;
(u) there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(v) copies of personal property Lien and tax and judgment Lien searches received by the Borrower prior to the Closing Date with respect to personal, real and mixed properties of the Borrower and the Guarantors, which shall not reveal the existence of any Liens on such properties other than (i) Permitted Liens or (ii) Liens as to which the Administrative Agent has received evidence satisfactory that the obligations secured by such Liens have been fully and finally discharged on or prior to the Closing Date;
(wm) the Administrative Agent Agents shall have received, in form and substance reasonably satisfactory to the Administrative AgentAgents, a certificate from an appropriate officer of each of the Credit Parties (i) attaching copies of the Organizational Documents of such Credit Party and copies of resolutions or consents of the board of directors of such Credit Party or of its applicable partner or member authorizing the applicable Financing Documents Documents, the Chapter 11 Cases and the other transactions contemplated hereby, and (ii) certifying (A) that such copies are true, correct and complete copies thereof and that such resolutions and Organizational Documents are in full force and effect as of the Closing Date and have been duly adopted in accordance with the Organizational Documents of such Credit Party, and (B) as to the signatures and incumbency of the Persons executing Financing Documents on behalf of such Credit Party;
(xn) a completed Borrowing Base Certificate dated the Agents shall have received copies of all Management and Service Agreements, including all employment agreements (if any) with the administrator, facility director, and director of nursing for each Healthcare Facility, which shall be (i) in form and substance satisfactory to the Agents and (ii) certified as true, correct and complete and in full force and effect as of February 28the Closing Date by an appropriate officer of the Credit Parties;
(o) the Lenders shall have received (i) unaudited consolidated financial statements of MHG and its Consolidated Subsidiaries for the nine- month period ended September 30, 2001 1999 and signed the one-month period ended October 31, 1999, consisting of consolidated balance sheets and the related consolidated statements of income, stockholders' equity and cash flows for such Fiscal Year, which unaudited financial statements shall be in form and substance satisfactory to the Agents and Lenders and shall be certified by a Financial OfficerOfficer of MHG that they fairly present the financial condition of MHG and its Consolidated Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, and (ii) drafts of the audited consolidated balance sheet of Mariner Post-Acute Network, Inc. and its Subsidiaries for the fiscal year ended September 30, 1999 and the related audited consolidated statements of income, stockholders' equity and cash flows of Mariner Post-Acute Network, Inc. and its Subsidiaries for such fiscal year, in reasonable detail and certified by a financial officer of MPAN that they fairly present the financial condition of Mariner Post-Acute Network, Inc. and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated;
(p) the Lenders shall have received (i) a detailed written description of all outstanding claims asserted by, and disputes with, the United States with respect to Medicare and/or under the False Claims Act or with any State or with any fiscal intermediary or agent for any of the foregoing, in any such case involving or against any of the MHG Companies and their Subsidiaries, and the amounts involved or claimed, (ii) a copy of the Settlement Letter, which Settlement Letter shall be in full force and effect, with no modifications thereto, and (iii) a copy of the HHS Stipulation, which shall be duly executed by all parties purported to be bound thereby;
(q) the Agents shall have received a written instrument, in form and substance satisfactory to the Agents, executed by MPAN for the benefit of the Agents and Lenders (i) evidencing MPAN's acknowledgment of and agreement to the provisions of Sections 5.13 and 7.07 and (ii) undertaking to comply with the obligations of the Borrowers and MPAN set forth in such Sections;
(r) the Agents shall have received (i) the Cash Budget and (ii) the Year 2000 DIP Budget, in each case in form and substance satisfactory to the Agents;
(s) the LC Issuing Bank shall have received a counterpart to the LC Issuing Bank Fee Letter, signed by each of the Borrowers;
(t) the Agents shall have received the Credit and Collection Policy, in form and substance satisfactory to the Agents;
(u) the Agents shall have received a schedule of actions, suits or proceedings pending or threatened against the Borrowers as of the Closing Date, which schedule shall be in form and substance satisfactory to the Agents; and
(yv) the Agents shall have received all other documents that the Administrative any Agent may reasonably request relating to the existence of the Credit PartiesMHG Companies, the corporate or other authority for and the validity of the Financing Documents, the creation and perfection of the Liens contemplated by the Collateral Documents and any other matters relevant thereto, all in form and substance satisfactory to the Administrative AgentAgents. Promptly after the Closing occurs, the Administrative Agent Agents shall notify the Borrower, the other Agents Borrowers and the Lenders thereof, and such notice shall be conclusive and binding on all parties hereto. Notwithstanding the foregoing, this Agreement shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.05(b)) before 5:00 pm., Eastern Time, on May 1, 2001 (and, if any such condition is not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Mariner Post Acute Network Inc)
