MPJ » Topics » CONDITIONS PRECEDENT

This excerpt taken from the MPJ 10-Q filed Aug 3, 2006.
CONDITIONS PRECEDENT

5.1 Closing Conditions. The obligation of each Lender to enter into this Credit Agreement is subject to satisfaction of the following conditions on or prior to the Closing Date (in form and substance acceptable to the Lenders):

(a)       Executed Credit Documents. Receipt by the Administrative Agent of duly executed copies of (i) this Credit Agreement and (ii) the Revolving Loan Notes.

(b)       Officer’s Certificate. Receipt by the Administrative Agent of a certificate of an officer of the Borrower stating that, as of the Closing Date, (i) there exists no Default or Event of Default, (ii) all representations and warranties contained herein and in the other Credit Documents are true and correct in all material respects and (iii) the Borrower is in compliance with the financial covenant set forth in Section 7.11, as demonstrated by the covenant calculations on a schedule attached thereto.

 

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(c)       Opinions of Counsel. Receipt by the Administrative Agent of the following:

(i)        an opinion, or opinions, satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders from legal counsel to the Borrower; and

(ii)       an opinion of Shearman & Sterling LLP, counsel to the Administrative Agent, in form and substance satisfactory to the Administrative Agent.

(d)       Corporate Documents. Receipt by the Administrative Agent of the following:

(i)        Charter Documents. A certificate of an officer of the Borrower that there have been no amendments or documents granted by the office of the Secretary of State of the State of Delaware affecting the Certificate of Incorporation of the Borrower issued by the Secretary of State of the State of Delaware on January 8, 2001.

(ii)       Bylaws. A copy of the bylaws of the Borrower certified by a secretary or assistant secretary of the Borrower to be true and correct as of the Closing Date.

(iii)       Resolutions. Copies of resolutions of the Board of Directors of the Borrower approving and adopting the Credit Documents to which it is a party and the transactions contemplated therein and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of the Borrower to be true and correct and in force and effect as of the Closing Date.

(iv)      Good Standing. Copies of (A) certificates of good standing, existence or its equivalent with respect to the Borrower certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation and each other jurisdiction in which the failure to so qualify and be in good standing would have a Material Adverse Effect and (B) to the extent available, a certificate indicating payment of all corporate franchise taxes certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of its incorporation and each other jurisdiction in which the failure to pay such franchise taxes would have a Material Adverse Effect.

(v)       Incumbency. An incumbency certificate of the Borrower, certified by a secretary or assistant secretary of the Borrower to be true and correct as of the Closing Date.

(e)       Financial Statements. Receipt by the Lenders of the consolidated audited financial statements of the Borrower dated as of December 31, 2005, including balance sheets and income and cash flow statements, in each case audited by independent public accountants of recognized standing and prepared in accordance with GAAP.

(f)        Fees and Expenses. Payment by the Borrower of all fees and expenses owed by it to the Lenders, the Arrangers and the Administrative Agent, including, without

 

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limitation, payment to the Administrative Agent of the fees agreed to between the Borrower and the Administrative Agent set forth in the Engagement Letter and payment to each of the Arrangers of the fees agreed to between the Borrower and each Arranger set forth in the respective fee letter between such Arranger and the Borrower.

(g)       Material Adverse Effect. No event or condition shall have occurred since the date of the financial statements delivered pursuant to Section 5.1(e) above that has had or would be likely to have a Material Adverse Effect.

(h)       Existing Credit Agreement. Receipt by the Administrative Agent of evidence that all obligations under the Existing Credit Agreement have been paid in full and all commitments thereunder terminated.

(i)        Account Designation Letter. The Administrative Agent shall have received the executed Account Designation Letter in the form of Schedule 1.1(a).

(j)        Other. Receipt by the Lenders of such other documents, instruments, agreements or information as reasonably requested by any Lender.

5.2 Conditions to Extensions of Credit. In addition to the conditions precedent stated elsewhere herein, the Lenders shall not be obligated to make any Loans, issue any Letters of Credit or extend any Maturity Date hereunder unless:

(a)       Request. The Borrower shall have timely delivered a duly executed and completed Notice of Borrowing, Letter of Credit Request, Competitive Bid Request or written request to extend any Maturity Date, as applicable, in conformance with all the terms and conditions of this Credit Agreement;

(b)       Representations and Warranties. The representations and warranties made by the Borrower in the Credit Documents are true and correct in all material respects at and as if made as of the date of the funding of each Loan, issuance of each Letter of Credit or each extension of any Maturity Date, and after giving effect to such Loan, Letter of Credit or extension, as applicable, and, with respect to each Loan, to the application of the proceeds therefrom; provided that the representations made pursuant to Sections 6.6, 6.8 and 6.9 shall only be made on the Closing Date and on the date of any extension of any Maturity Date; and

(c)       No Default. On the date of the funding of each Loan, issuance of each Letter of Credit or each extension of any Maturity Date, as applicable, no Default or Event of Default has occurred and is continuing or would be caused by making the requested Loans, including, without limitation, with respect to each Loan, the restrictions on (i) the amount of Credit Extensions that may be outstanding as set forth in Sections 2.1(a) and 2.1(b) and (ii) the use of proceeds set forth in Section 7.9.

The delivery of each Notice of Borrowing, Letter of Credit Request or Competitive Bid Request, as applicable, shall constitute a representation and warranty by the Borrower of the correctness of the matters specified in subsections (b) and (c) above.

 

 

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